District Court New South Wales Medium Neutral Citation: SK v Secretary, Department of Family and Community Services [2016] NSWDC 273 Hearing dates: 15, 16, 17, 18 and 19 August 2016 Date of orders: 24 October 2016 Decision date: 24 October 2016 Jurisdiction: Civil Before: Montgomery DCJ Decision: 1 The appeal is allowed. 2 Final Orders of the Children's Court made 8 March 2016 be set aside. 3 Parental Responsibility for SB is to remain with the Minister for 12 months from the date of these Orders pursuant to s 79(1)(b) of the Care Act, save as follows. 4 All aspects of parental responsibility of SB are after 12 months from the date of these Orders to be restored to SK pursuant to s 79(1)(a) of the Care Act. 5 The Secretary is to prepare a permanency plan for restoration of SB with SK, in accordance with Orders 3 and 4 above, pursuant to the provisions of ss 84 and 85 of the Care Act. 6 The Secretary is to provide a plan for transition of SB into the care of SK over the period of three months commencing the date of these Orders. 7 I direct the parties to attempt to agree orders providing for the requirements of the permanency plan involving restoration to SK, provision of services facilitating that restoration. 8 I direct the parties to attempt to agree undertakings to be given by SK, following as closely as can be agreed, the undertakings offered by SK in Exhibit A, such undertakings to be for the period of 12 months from the date of these orders. 9 The matter to be returned before me for the making of further final orders on 21 November 2016 Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Court Suppression and Non-publication Orders Act 2010 Cases Cited: SL Secretary Department of Family and Community Services [2016] NSWCA 124 re Henry JL v Secretary, Department of Family and Community Services [2015] NSWCA Campbell [2011] NSWSC 761 Saunders and Morgan & Anor v Department of Community Services 12/12/2008 NSWDC Category: Principal judgment Parties: SK (Plaintiff) Secretary, Department of Family and Community Services (Defendant) Independent Legal Representative (Independent Legal Representative) Representation: Counsel: F Conte-Mills (Plaintiff) M Anderson (Defendant) P Braine (ILR) Solicitors: Juris Australia Lawyers (Plaintiff) Crown Solicitors Office (Defendant) Rafton's Family Lawyers (ILR) File Number(s): 2016/00102761 Publication restriction: Initials have been used in order to anonymise the children, parties and family members. Decision under appeal Court or tribunal: Children's Court of New South Wales Jurisdiction: Civil Date of Decision: 8 March 2016 Before: Children's Magistrate Murphy File Number(s): 388/14-001 Judgment 1. The plaintiff appeals pursuant to s 91 Children and Young Persons (Care and Protection) Act 1998 (Care Act) from Final Orders of the Children's Court made 8 March 2016, that pursuant to s 79 (1) (b) of the Care Act, parental responsibility of the child SB be allocated solely to the Minister until SB attains the age of 18 years. 2. The hearing was conducted in Closed Court proceedings pursuant to s104B of the Care Act. 3. Parties, SB's siblings, birth family and foster carers are identified in these reasons by initial or by other descriptions for anonymity as provided for by s7 Court Suppression and Non-publication Orders Act, 2010 and s105 of the Care Act. 4. In this appeal the District Court has all the functions and discretions of the Children's Court and the decision of the District Court in respect of the appeal is taken to be a decision of the Children's Court and has effect accordingly; s91(4) and (6) of the Care Act. 5. With consent of the parties and mindful of the practices and procedures set out in SL Secretary Department of Family and Community Services [2016] NSWCA 124, the Independent Legal Representative for SB was joined as a third defendant pursuant to s99, s99A, s99B and s99D of the Care Act. In addition this procedural step provided continuity given the joinder of the Independent Legal Representative in the Children's Court proceedings. 6. The plaintiff, SK, is the mother of SB. SK seeks restoration to herself of Parental Responsibility of her infant child, SB, born 2 July 2014. GB is the father of SB and the husband of SK. 7. At the time of the hearing, GB was detained at Villawood Detention Centre awaiting deportation which deportation occurred on 30 August 2016. By document dated 16 August 2016, obtained in the course of the hearing (Exhibit 2), GB supported SK's application for parental responsibility to be restored solely to SK. GB elected to take no further part in the proceedings. 8. Section 79 of the Care Act permits the Court to allocate all aspects of parental responsibility or one or more specific aspects of parental responsibility (set out in s79(2)), if it finds SB is in need of care and protection for a period specified in the order: (a) To one parent to the exclusion of the other, or to both parents jointly, or; (b) Solely to the Minister; (c) To one or both parents and to the Minister jointly, or (d) To one or both parents and to another person or persons jointly, or (e) To the Minister and another suitable person or persons jointly, or (f) To a suitable person or persons jointly. 1. The history on the whole of the evidence shows tension between SK and Caseworkers of the Department of Family and Community Services and Barnardos such that I am not of the view that an order allocating parental responsibility jointly or otherwise shared between SK and the Minister would result in co-operation between them in the best interests of SB: see Care Act, s79(8). The proceedings were conducted by all parties on the basis of the competing alternatives: 1. sole parental care remain in the Minister; 2. sole parental care be restored to SK. 1. On the whole of the evidence, I agree with that course. 2. Pursuant to s79(3) of the Care Act, the Court must not make an order allocating parental responsibility unless it has given particular consideration to the "permanent placement principles" and is satisfied that the order is in the best interests of the child or young person. 3. It is clear from the statement of objects and principles in s8 of the Care Act and the statement of principles for administration of the Care Act in s9 that the making an order for parental care is not to be determined upon sentimental or emotional values. Rather, for consideration is: which of the alternatives for parental responsibility here is to be preferred on the basis of the paramount consideration of the safety, welfare and wellbeing of SB, having regard to the parenting capacity of SK. Whilst considering all of the objects of the Act set out in s8, the following most immediately go to the issues in this case: (a1) "that the recognition that the primary means of providing for the safety, welfare and wellbeing of children and young persons is by providing them with long term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provides services that foster their health, developmental needs, spirituality, self-respect and dignity." 1. Whilst considering all of the paramount consideration provisions set out s9 of the Care Act, the following refer to the cultural, religious, developmental needs and self-identity issues in the particular factual material relevant to consideration of the safety, welfare and well-being of SB. They are set out in s9(2): "(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (c) In deciding what action is necessary to take (whether by legal or administrative process) in order to protect the child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family, that is, consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. (d) If a child or young person is temporarily or permanently deprived of his or her family environment or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. (g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person". 1. The parties join in acknowledging the importance, in the Court's determination, of permanence of placement of SB in order to minimise the intrusion and interruption in his developmental needs as a 2 year old. 2. The primary importance of permanent placement principles is compelled by the object expressed in s8(a1). The parties acknowledge that the importance of the application of permanent placement principles is unavoidably in accordance with the principles for administration of the Care Act set out in s9 and in those subsections (s9(2)) which I have selectively quoted above. 3. The permanent placement principles are set out early in the Act at s10A, which provides as follows: "S10A: 1. In this Act: 2. Permanent placement means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person. 3. Subject to the objects of s8 and the principles in s9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles. 4. The permanent placement principles are as follows; 1. If it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of s83) or parents so as to preserve the family relationship. 2. If it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person. 3. If it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is, except in the case of an Aboriginal or Torres Strait Islander child or young person, for the child or young person to be adopted. 4. If it is not practicable or in the best interest of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law. 5. If it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b) or (d), the last preference is for the child or young person to be adopted." 1. In my opinion, for consideration here is the deliberate expression of cascading preference of options for permanent placement expressed in s10A(3). Obviously, the first preference is restoration of care of SB to SK and preservation of his family relationships with his siblings, his 17 year old brother BK and 14 year old brother RK, in SK's household. BK and RK are children of SK by her first marriage. This consideration is to be employed subject to the objects of s8 and s9 (s10A(2)), focusing on the paramountcy of the welfare of SB. 2. Sections 8 and 9 of the Care Act are intended to give guidance of approach in this regard and "Do not create or confer, on any person, any right or entitlement enforceable at law", s7 of the Care Act; re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [26]. The scheme of the Care Act to be applied when focusing on the welfare of SB in the determination in this case is apparent from provisions such as s71 of the Care Act which relates to grounds for care orders, pointing attention to basic physical, psychological, educational needs and avoidance of the likelihood of serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which SB might live; particularly s71(1)(e). 3. SB's developmental needs as a two year old, described by the Court-appointed clinician, Dr Gray, and addressed in these reasons, is an important consideration in determination of whether the paramount consideration of safety, welfare and wellbeing of SB, applying the permanency placement principles, requires an order continuing the Final Order or an order for restoration of parental care to SK. 4. In the making of the Final Order for removal of SB from the care and protection of his mother SK and allocating parental responsibility to the Minister, being the order the subject of this appeal; the Children's Court had to first have considered the care plan presented to it by the Secretary: s80 of the Care Act; re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 per McColl JA at [39]. 5. The place in which this appeal lands accords with what is helpfully set out in the reasons of McColl JA at [42] to [44] wherein her Honour said as follows: "[42] If the Director-General applies to the Children's Court for a care order (not being an emergency care order and protection order) for the removal of a child, the Director-General must assess whether there is a realistic possibility of the child being restored to his or her parents, having regard, relevantly to, the circumstances of the child and the evidence, if any, that the child's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care; s83(1). If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child and submit it to the Children's Court for its consideration; s83(3). The Children's Court is to decide whether to accept the assessment of the Director-General; (s83(5). The Children's Court must not make a final care order unless it expressly finds that permanency planning for the child has been appropriately and adequately addressed; s83(7). [43] Insofar as "realistic prospects of restoration" in s83(7) that may result in an order approving a permanency plan involving restoration are concerned, the Court takes into consideration in relation to the "circumstances of the child" (s83(7)(b)(i)), "the whole of the child's situation", including "any aspects of the situation in which the child is placed, the setting in which he or she is living and the influences bearing upon his or her wellbeing" and "potential harm" (authority cited) [44] The Court must assess at the time the application is before it whether there is a "realistic possibility of restoration", that is to say, whether "the possibility of restoration is real or practical [and not] …. fanciful, sentimental or idealistic, or based upon "unlikely hopes for the future"." (bold added) 1. Her Honour referred with approval to the consideration of "realistic probability of restoration" by Slattery J in Campbell [2011] NSWSC 761 (at [55]). THE NATURE OF THE APPEAL 1. The appeal was heard pursuant to s91(2) of the Care Act by way of a new hearing and fresh and additional evidence was received. That evidence included evidence of events post-dating the care plan prepared by the Secretary pursuant to s79 and the permanency plan prepared by the Secretary pursuant to s83(3) prior to the making of the Final Order by the Children's Court. 2. In February and March 2016, pursuant to s83 of the Care Act, the Secretary applied to the Children's Court in those proceedings for Final Orders for the removal of SB from his parents, SK and GB. At that stage SK did not seek sole parental care of SB. The Secretary provided that Court with its assessment that there was not a realistic possibility of SB being restored to his parents having regard to: 1. the circumstances of SB, and; 2. the evidence that SK and SB were not likely to be able to satisfactorily address the issues that led to the removal of SB from their care. 1. Section 83 relevantly further provides as follows (substituting "Court" for Children's Court): "(3) If the Secretary assesses that there is not a realistic possibility of restoration, the Secretary is to prepare a permanency plan for another long-term placement for the child or young person and submit it to the [Court] for its consideration; (4) In preparing a plan under ss(3) the Secretary must consider whether adoption is the preferred option for the child or young person; (5) The [Court] is to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration; (b) in the case of a child or young person who is two or more years of age on the date the [Court] makes an interim order allocating parental responsibility for the child or young person to a person other than a parent – within 12 months after the [Court] makes the interim order: 5A However the [Court] may, having regard to the circumstances of the case and if it considers it appropriate and in the best interests of the child or young person, decide, after the end of the applicable period referred to in ss(5) whether or not there is a realistic possibility of restoration; (6) If the [Court] does not accept the Secretary's assessment, it may direct the Secretary to prepare a different permanency plan. (7) The [Court] must not make a final care order unless it expressly finds: (a) That permanency planning for the child or young person has been appropriately and adequately addressed; (b) That prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to: (ii) The evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. (7A) For the purposes of ss(7)(a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so that the Court, prior to final orders being made, can have a reasonably clear plan as to the child's or young person's needs and how those needs are going to be met. (8) A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the [Court]". 1. Essentially in this appeal, the Secretary opposed SK's appeal on grounds set out in paragraph 10 of its First Defendant's written submissions, which I quote: "(10) The reasons for removal of [SB] from his parents' care were and it is submitted continue to play a part in the assessment of the possibility of restoration, in summary are: (1) The abuse of herself and SB by SK in utero, threatening his life; (2) [SK's] mental health; (3) [SK's] abusive relationship with [GB]; (4) [SK's] inability to become sufficiently attuned and responsive to [SB's] developmental needs; (5) Additionally, there has not been (and there is currently) no attachment relationship between [SK] and [SB]". 1. The significant change in circumstances is that GB, SB's father and SK's abusive husband, was on 30 August 2016 deported from Australia. This appeal considers restoration to SK's care only. 2. It was the bad health of that marital relationship, and GB's infidelity which triggered the relevant behavioural events, which in turn are identified by the Secretary as giving rise to concerns for SK's mental health fitness relevant to her parenting responsibility. It was SK's persistence to save her second marriage at and following the time of removal of SB, including SK pursuing GB despite the history of GB's physical domestic violence inflicted upon her, which gave rise to the Secretary's concerns for SK's failure to attune to and respond to the risk for SB's emotional development. 3. SB has never been within the care of SK, he having been removed pursuant to an interim order following birth and immediate post-natal hospital care (unrelated to any mistreatment in utero and due to pre-eclampsia). 4. Since 13 May 2016, SB has been living in long-term placement on the NSW coast south of Sydney at a significantly inconvenient distance from SK. SB's care is supervised by Barnardos. The long-term carers were selected by Barnardos Find a Family scheme. The placement is with a view to adoption. Obviously these arrangements postdate the Final Orders made 8 March 2016. 5. There is no evidence of physical abuse or of emotional or psychological mistreatment of SB by SK. 6. The Secretary's opposition to the order for restoration, for which SB appeals is, as identified in the above passage quoted from the First Defendant written submissions, based principally upon concern for SB in the home environment of SK given a history of behaviour including events of inadequate personal control and tolerance of domestic violence assessed to display a lack of appreciation of the significance of risk of mental harm to SB and a lack of insight into that potential for harm consequent of those behaviours. 7. At the opening of the case I was informed that on the making of the Final Orders there was no contest in the Children's Court but that the order occurred in circumstances of SK's legal representative, as a result of misunderstanding instructions, firstly conceding that there was no realistic possibility of restoration, and at a later hearing, withdrawing that concession. Further, that the error occurred in circumstances of instructions firstly having been obtained without a Punjabi interpreter. Counsel for the plaintiff described that course as "somewhat of a debacle in terms of what was happening in Court" and as "the trigger for this appeal". Counsel for the Secretary and for the Independent Legal Representative confirmed that the concession was not made. 8. Counsel for the Secretary, in opening, identified the Secretary's opposition to restoration, on an incident basis as follows: (1) The threat to SB's life whilst in utero by SK's two attempts at self-harm; (i) An overdose of clonazepam, an anti-anxiety medication; (ii) Punching her abdomen causing bruising; (2) The violent domestic, parental relationship of SK and GB; (3) SK's inability to become sufficiently attuned to and responsive to SB's developmental needs in the environment of above events; (4) SK not having developed an attachment relationship with SB in circumstances of SB never having been in her care. 1. It is important now with the benefit of evidence of history from preceding the date of birth of SB and in the context of fresh and additional evidence to consider this matter afresh as required by s91(2) and in the context that the "issues that have led to the removal" of SB (s83)(1)(b) and (7)(ii)) have significantly changed. THE THRESHOLD FOR RESTORATION 1. Of what the evidence must establish in order for SK to succeed in achieving a restoration order, I am guided by the approval by McColl JA in re Henry, of the following statements of principle by Slattery J in Campbell's case an consequently of Johnstone DCJ in Saunders and Morgan. In Saunders and Morgan & Anor v Department of Community Services, 12/12/2008 NSWDC, unreported, Johnstone DCJ, said of the expression "realistic possibility of restoration" employed in s83 of the Care Act, the following: "[13] There are aspects of a "possibility" that might be confidently stated as "trite". Firstly a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible. [14] The section requires, however, that the possibility be "realistic". That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon "unlikely hopes for the future". Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words "sensible" and "commonsensical"." 1. In the matter of Campbell [2011] NSWSC 761, Slattery J approved what was said by Johnstone DCJ. His Honour reasoned: "[56] … What Johnstone DCJ says in paragraphs [13] and [14] is, in my view, with respect to His Honour, correct and is about all that can usefully be said about the expression "realistic possibility". It is going too far to read into the expression a requirement that an applicant must always at the time of hearing on the application for rescission or variation have demonstrated participation in a programme with some significant "runs on the board". That in my view is to put a gloss on the words which are not in the legislation." 1. What Slattery J in his paragraph [56] was referring to as "runs on the board" is a reference to an earlier part of the passage in the reasons of Johnstone DCJ commenting upon the then Senior Children's Magistrate Mitchell's reasons at first instance, that "realistic possibility" required the Court to be able to see that "the parent has already commenced a process of improving his or her parenting, that there has already been significant success and that the continuing success can confidently be predicted". 2. Adopting his reasoning in determination of the present case; in my opinion, I am to consider whether or not there is the "realistic possibility" of SB being restored to SK on the evidence of the present circumstances of the whole of the environment of SB and of the whole of the environment available to SB in SK's household. In that consideration, caution for there not having been a period of care of SB by SK in her household is to be valued in the context that there is no onus upon her in order to be successful in the appeal to show significant "runs on the board". 3. In my opinion, whilst not "runs on the board" of re-adjustment from the circumstances which led to removal of SB, a significant circumstance (s83(1)(a), (7)(b)(i) Care Act) here is consideration of the welfare and achievement of SK's 17 year old son, BK, and 14 year old son, RK, in her household. Each of these boys is the child of SK's first husband JK, who abused her on occasions of her challenging him over his waste of the family finances through his gambling habit. BK and RK have remained living with her through her marriage and co-habitation with and trauma associated with JK and GB. Their developmental state and observed behaviours are the product of parenting environments provided by SK over the presently relevant periods to the present, during which she has sole parented. 4. There is very little evidence that in the circumstances of being married to violently abusive husbands, SK permitted her sons BK and RK to be exposed, in the sense of witnessing, that violence. She described it as having occurred away from them such as in other parts of the residence. RELEVANT HISTORY 1. In 1997, SK married her first husband JK. They came to Australia and SK obtained her residency in 2003. Their union produced BK and RK. Due to his gambling the family suffered serious financial difficulties and stress. SK informed Dr Gray, the Court-appointed clinician, that due to the chronic gambling and excessive alcohol consumption of JK, they had fallen behind in their mortgage payments, that he was stealing money that she had set aside for her children and housekeeping and stole her jewellery. JK was violently abusive of SK when those stresses caused arguments. 2. SK and JK separated in 2006. SK thereafter raised BK and RK as a single mother without significant financial support from JK. In 2009, when BK was about 10 and RK was about 7, SK was admitted to Concord Hospital suffering severe emotional distress resulting from her separation from JK, financial pressures of supporting her young family and despair to the point that she could not see a future for herself. 3. The position taken by her family (in India) in relation to JK's behaviour was not supportive, it being based on cultural values. This added to JK's distress, sense of isolation and failure according to her cultural values. 4. JK has continued to provide minimal financial support. Relevant to these proceedings JK continues to live in a nearby street to the home of SK, BK and RS, works as a taxi driver and has healthy father/son relationships with each of BK and RK. When SK is absent from home, JK checks on and attends the boys in their home. COMMENT In my view, that SK has maintained the relationship between BK, RK, and their father JK in these circumstances, indicates her insight into the importance of parental influences and family identity in the lives of her children. 1. Between 2009 and 2013, SK was employed by Just Better Care providing home care to the aged and disabled. A change of regulation in 2013 required persons of that employment to hold a qualification identified in the evidence as a Certificate 3. As SK did not hold that certificate, she lost her job. SK continued raising her sons BK and RK during this period when financial stresses were very significant upon her, as a single mother. She endeavoured to study and qualify for her Certificate 3 so as to be able to regain employment in the aged and disability home care sector. 2. In 2012 JK and SK divorced. 3. On 13 May 2013 SK married GB in India. Her parents, who lived in India, did not support the marriage and did not attend the wedding. GB violently abused SK whilst they were together in India. 4. Following her return to Australia in 2013 and whilst pregnant with SB to GB, SK received information concerning GB's infidelity, which allegations he denied during their telephone discussions. At the time she had no substantial emotional support from extended family members in India because of their disapproval of both her divorce from JK and her marriage to GB. She had no practical social support in Australia. With the loss of her employment pending her obtaining the newly required certificate for home care workers, financial stress was severe such that she required assistance with food vouchers from Community Services. Clinical notes of Canterbury Hospital Mental Health Unit show communications with Dr Smythe, SK's regular GP who conducted a follow-up mental health plan. 5. In Australia, SK was medically advised to cease taking her anti-depressant medication due to her pregnancy. She had taken the medication since about 2009. 6. On 5 April 2014, Community Services received a Risk of Significant Harm report stating that SK had been scheduled on 4 April 2014 under the Mental Health Act. She had taken an overdose of sleeping tablets after a telephone argument with GB concerning his infidelity. GB remained in India. 7. The COPS report records that SK was deeply upset by the conversation and after hanging up, consumed between eight and sixteen tablets of her (prior) medication Clonazepam, her daily dosage being a single tablet. BK and RK witnessed the event and attempted to remove the tablets from SK's hands. BK and RK told the police that they wished to remain in the unit (their home) as SK was taken to hospital. Police recorded that they "do not believe the [BK and RK] to be overly distressed by the events". The police recorded their observation of the maturity of BK and RS. BK and RK informed police that during their mother's absence, JK, who lived only a short distance away, would look in on them. The unit was less than 100 metres from Campsie Police Station. In oral evidence, SK stated that she called BK and RK each day from hospital. The evidence confirms that they were adequately provided for in terms of food and had access to their biological father JK, as required. 8. Following SK's discharge from hospital, on 11 April 2014 caseworkers McCorquodale and Stolzenheimn attended the home and found SK, BK and RK to be clean and appropriately dressed. BK and RK were found to be polite and answered questions when asked. BK and RK reported that they had no concerns about their mother. 9. An assessment on 17 April 2014 concluded that BK and RK were safe. A verbal safety plan was discussed between caseworkers and SK. During SK's hospitalisation, RK had suffered an asthma attack and was able to dial 000 to organise his own care. Otherwise BK and RK maintained school attendance. Police reported RK to be in good spirits and that he stated that he and his brother were capable of grocery shopping for food and supplies and for caring for themselves. He confirmed access to his father who lived a few streets away until his mother returned. 10. The sensible but precautionary checks made by police and caseworkers through this period do not report any observation of distress by BK or RK, nor that they missed school or lacked provision of clothing or food. Nevertheless, one must acknowledge that they were adolescents in the vulnerable situation of not being within the fulltime care of an adult whilst SK was in hospital. 11. On 7 May 2014 Canterbury Mental Health Crisis Team reported that they had spoken with SK almost every day and had visited once over the prior two weeks. SK had reported that everything was fine. 12. On 21 May 2014, caseworker McCorquodale with Ms Chen of the Department attended the home unannounced. They were invited in. They were concerned that, at 27 weeks gestation, they found no sign of preparation for the baby (SB) such as a cot, pram or other items. SK was up to date with her antenatal appointments for medical care and had been attending her GP. She confirmed that she had not been seeking mental health care because she felt fine. She confirmed that she was excited about the pregnancy but the caseworkers recorded that they considered SK to be evasive by giving answers such as "It's all good". COMMENT I note that during an assessment interview, SK explained that at that time that she was stressed by her lack of money making it impossible for her to purchase essential equipment for SB. Allowing for what I consider to be an understandable sense of humiliation in that regard, combined with her cultural values; I do not find this evidence to be suggestive of a lack of enthusiasm, interest or attachment to the pending birth of SB. 1. On 6 June 2014 SK's GP, Dr Smythe, confirmed to caseworker McCorquodale that SK was aware that all was not right in her life. The same day Canterbury Mental Health Crisis Team confirmed that in the previous week SK had been discharged from the Service on an assessment of no further concerns as they were satisfied the antenatal clinic's clinical nurse was involved. 2. On 6 June 2014 (as earlier, on 30 May 2014) Community Services provided food vouchers to help SK buy food for herself and for BK and RS, SK having sought help pending her next Centrelink payment. 3. On 17 June 2014, SK presented at Canterbury Hospital reporting that during a heated telephone argument with GB on 13 June 2014, whilst GB was in India, she had punched herself in the abdomen when extremely upset because of their argument and concerns about her husband's infidelity. She was concerned that in the intervening days the baby's movement had only been limited and she presented for a check of her unborn child's health. The baby was healthy. SK was scheduled under the Mental Health Act (NSW) overnight. The hospital records again confirm that BK and RK managed independently and without concern at home, that they were mature in responsibility for themselves including as to grocery shopping and cooking. They had access to their nearby biological father should they have need but, as confirmed by JK, he was on that evening incapacitated due to a leg injury. The records show that, sensibly, social workers had concern for teenage boys at home alone for one night, which concern was both matched by BK and RK's confidence and their awareness of available assistance from JK, and from the nearby police station if needed. Again, I do not gain any impression of actual risk to the boys, although their vulnerability must be acknowledged. COMMENT It must be observed at this point that whereas the Secretary's closing written submission at 10(1) (quoted above) and Additional Written Submissions at (3) refer to clinical notes recording "with suicidal and foeticidal intent", those words appear in a discharge summary and record the summary impression of a clinician only. Indeed, the same entry misdates the abdomen punching event and reports it as having occurred in combination with and at the same time as the Clonazepam overdose on 4 April 2014. In fact, it was reported on SK's presentation on 17 June 2014. Whilst the Discharge Summary records SK having said on one or other of those events words to the effect that she wanted to kill herself because she was "not happy with life" the reference to wanting to kill herself is not contained within quotation marks and is therefore a summary statement of the clinician. The notes also confirm the fact that due to her pregnancy SK had been off her Clonazepam medication. SK denied any imminent, dangerous plans. Importantly, the clinical notes and the discharge summary record that. Dr Ali, specialist consultant psychiatrist, gave oral evidence assessing the events of 4 April and 17 June 2014. In his opinion, SK did not intend to harm her unborn baby, SB, on either occasion. The 17 June 2014 admission was voluntary and displayed SK's concern for the health of SB. Further, that whilst punching her abdomen is a serious matter displaying lack of self-control, she self-monitored foetal movement and took her precautionary and responsible course of seeking medical assessment, displaying bonding with her unborn child, SB. 1. On 19 June 2014, the psychologist at Canterbury Hospital confirmed to caseworker McCorquodale that SK had been discharged with referral for antenatal clinic follow-up on 21 June 2014 and 23 June 2014. On the social worker informing Ms McCorquodale that SK had requested the hospital give her a letter for use in support of SB's visa application with the Department of Immigration, Ms McCorquodale requested that the hospital not provide the letter due to her significant concerns regarding domestic violence. 2. On 19 June 2014, caseworker McCorquodale conducted a home visit at which she observed SK to be well-dressed and smiling but embarrassed when questioned about the self-harm incident. Ms McCorquodale observed that there was still no cot or pram in preparation for the birth of SB (gestation 30 weeks). Ms McCorquodale was concerned with what she interpreted as SK playing down the self-harm event as no big deal. Ms McCorquodale recorded that SK explained the stressor as a fight with GB about his infidelity in India which caused her to get very angry but not about the baby. SK stated that she did not want to hurt the baby. SK also disclosed that she was stressed by her financial inability to provide adequate preparation for SB. SK informed Ms McCorquodale that she had applied for a spousal visa for GB about three months beforehand and was told that it would take eight to eleven months to process. SK was not forthcoming in responses to Ms McCorquodale's questions concerning her relationship with GB and when Ms McCorquodale informed SK that Community Services were concerned about her and her baby, SK continued to state "I'm fine, I'm fine". SK agreed that she would call the Crises Line if argument with GB caused her stress and anger in the future, and that she would call JK to check up on BK and RK. SK agreed that if JK was not available, she would call Ms McCorquodale (if during business hours) or the Child Protection Helpline (outside of business hours) to organise check on the boys. 3. On 1 July 2014, SK was admitted to Canterbury Hospital due to pre-eclampsia (blood pressure) concerns. 4. On 2 July 2014, SB was born at gestation 33 weeks via emergency caesarean section consequent of SK's pre-eclampsia. SB was admitted to the Neonatal Intensive Care Unit at Canterbury Hospital. 5. On 3 July 2014, caseworker McCorquodale and a social worker at Canterbury Hospital arranged for the hospital to monitor attachment and bonding between SK and SB, the expectation being that SK would be in hospital for one week. 6. On 5 July 2014, GB arrived in Australia on a 3 month tourist visa from India. 7. On 7 July 2014, caseworker McCorquodale conducted a home visit to check on the well-being of BK and RK whilst SK was in hospital. They were found again to be clean and tidy and showed Ms McCorquodale that there was plenty of food in the house and they took her through the kitchen. They expressed that they were going to see their new brother on the weekend. They showed Ms McCorquodale the emergency numbers on the refrigerator and that they had the number for their mother at the hospital. They told Ms McCorquodale that their father JK was available to assist. 8. On 8 July 2014, caseworker McCorquodale was informed by a Canterbury Hospital social worker that SK had not been visiting SB regularly, and that when she did it was only for short periods, the visitation chart showing that after birth on 2 July 2014, SK first visited SB on 5 July 2014. 9. In her evidence, SK explained that she was in extreme pain from the caesarean section and visited SB as soon as she could. COMMENT: In this appeal, the Secretary points to what it describes as that delay in visitation of her new baby, displaying a lack of bonding and attachment to SB. Whilst caseworker McCorquodale's affidavits do not go to the detail of 2 to 5 July 2014 and expected clinical notes are not in evidence, the Mental Health Adult Triage report dated 8 July 2014 includes "[SK] has been visiting her baby there on a daily basis and expressing breast milk to feed him". The chronology of events included in the Application Report Initiating Care Proceedings filed in the Children's Court on 5 August 2014 records that the caesarean section surgery occurred on the night of 2 July 2014 and that on 3 July 2014 SK "was not doing very well". This would corroborate the plaintiff's description of her pain and inability to visit her child. The hospital Interaction Chart is exhibited to the affidavit of caseworker Sivaraman made 13 May 2016. It shows that SK, with GB, visited SB for 25 minutes at 11:55 am on 5 July 2014; that is, before noon on the third day after caesarean section birth. The record shows that SK was "neat and appropriate". It records "Mum touched her baby, offered cuddle but declined". The comments were "Mum asking appropriate questions, Dad very quiet". Thereafter, the Interaction Chart shows that SK visited SB twice on 6 July 2014, 7 July 2014 and 8 July 2015, where the chart stops. All of the entries describe SK displaying love, attachment and doting upon SB. After not recovering well on 3 July 2014, SK may have feared cuddling her significantly pre-term baby on 5 July, perhaps due to her remaining pain and physical incapacity. The notes record her physically involving herself in SB's care from 5 July 2014. Indeed, the entry of that day for 6 July is for 45 minutes attendance. The visitations were for progressively longer periods as the days progressed from 5 to 8 July. The clinical notes are consistent with SK's recuperation from caesarean section surgery. Indeed, on 6 July 2014, the comments record "Mum wanted to assist with T+T, but Mum went pale and complained of pain, staff returned Mum to PNW [post-natal ward]. Mum appeared reluctant to leave as interested in watching baby wash". On the afternoon of 6 July, the note includes "eager to have cuddle, had cuddle for 30 minutes". On 7 July, interactions and comments record as follows: "Having a cuddle with baby. I explained next feed is at 1800 – can try a B/F [breastfeed] if Mum wants to. Mum smiling, appropriate towards baby". Other notes record SK asking appropriate questions about SB's progress. From 5 July, SK visited SB at Canterbury Hospital every day except 14 July, but visited twice on 15 July, and on each occasion would stay for one to two hours, enquiring about SB's progress changing and feeding SB and expressing milk. In my opinion, there is nothing in the objective evidence supportive of the Secretary's submission that SK displayed lack of attachment and bonding to SB whilst in hospital and prior to his removal by the First Interim Order. To the contrary, the recordings in the objective evidence, including the observations of specialist prenatal psychiatrist Dr Woods on 8 July 2014 paint the very opposite picture of a mother displaying appropriate care, nurturing and doting toward her new baby son. Dr Woods recorded her observation that SK felt well and happy to have her husband in Australia and hoped to organise a visa for him to stay longer. She said there were no issues with the relationship (GB had only been in the country for two-and-a-half weeks at that time); that SK disclosed that she was previously worried about his infidelity in India but had no such concerns while he was in Australia. SK had no thoughts of self-harm, harm to children or others. Dr Woods recorded "Bonded with baby. Baby. Enjoys seeing him. Loves him. Worries about him but reassured he is growing. Found early delivery scary at the time". 1. On 10 July 2014, a safety assessment conducted by caseworker McCorquodale found that BK and RK were "safe with a plan". 2. On 31 July 2014, a discussion between caseworkers McCorquodale, Dean, Chivell recorded concerns for domestic violence, bonding, attachment, mother's mental health and impact of the risk factors on the parent's ability to provide safe care to SB. It was at this time and on those observations by caseworkers that the decision was made to assume SB into the care of the Minister. 3. On 31 July 2014, SK discovered the contact "Baby" on GB's mobile phone and confronted him about it. GB assaulted her. She reported the incident to police and GB was arrested. SK reported the incident to caseworker McCorquodale. Proceedings for a Provisional Apprehended Violence Order against GB were commenced. Whilst at Campsie Police Station, caseworkers McCorquodale and Penhaligon informed SK and GB of the Department's decision earlier in the day that SB would be removed into care. 4. On 1 August 2014, SB was discharged from hospital and placed immediately in the primary care of a Barnardo's authorised short-term foster care, where he remained until 12 May 2016. 5. On 5 August 2014, the Application Report Initiating Care Proceedings seeking Interim Order for parental care to the Minister commenced what has become these proceedings. 6. On 6 August 2014, Interim Care Orders were made allocating parental responsibility for SB to the Minister. 7. On 7 August 2014, police found GB at SK's home and arrested and charged him with breach of the Apprehended Violence Order. SK was taken to Canterbury Hospital because of her distress following the arrest. 8. On 19 August 2014, SK and GB commenced attending Jannawi Family Centre for counselling in relation to domestic violence and child protection on a referral from Community Services. 9. On 15 September 2014 at Burwood Local Court, GB was sentenced to a 12 month good behaviour bond for the 31 July 2014 assault on SK. 10. Between August and 1 December 2014 SK, on referral from GP Dr Smythe, consulted on nine occasions with clinical psychologist Khatri who was conversant in SK's first language and familiar with SK's Punjabi culture. 11. On 8 January 2015, GB slapped SK. 12. On 13 February 2015, GB struck SK during an argument over finances. SK ran the 100m to Canterbury Police Station at around midnight. GB had used a closed fist and SK had suffered a laceration near her eye causing bleeding. 13. On 13 February 2015, SK separated from GB. 14. On 26 February 2015, SK attended Burwood Local Court for the mention of the Apprehended Violence Order proceedings against GB. GB stated that he was happy with the Court order because he did not ever wish to return to SK's home. This caused SK severe stress, because of her realisation commencing at that moment that GB had been using her for entry to Australia and financially. She ran outside the Court, she says to look for her interpreter. A caller reported her as being in the road. That is where police found her. She was so distressed that she described to police "self-harm by getting run over by a vehicle". Aware that she had a mental health history, police took SK to Concord Hospital for scheduling under the Mental Health Act. She was discharged that evening, assumedly on assessment by an Authorised Medical Officer under the Mental Health Act, that she was not suffering mental illness. SK denies that she was trying to get run over. COMMENT I accept Dr Ali's opinion, he having been directed to the hospital clinical notes and to the relevant police documentation before giving oral evidence, that SK's statement to police, who were in position to remove her to safety, was not recital of a real plan for suicide. 1. On 22 April 2015, GB was convicted of Assault Occasioning Actual Bodily Harm in breach of the Apprehended Violence Order and a two-year Apprehended Violence Order was made. 2. Between 7 February 2015 and 24 September 2015, mobile telephone communication between SK and GB became the subject of case work investigation. This was because caseworkers were concerned that SK's reluctance to disclose and at other times minimising reports of domestic violence was interpreted as displaying her lack of insight to the risk that violence held for SB were he to be restored to the household of SK and GB. In addition, caseworkers considered SK to be difficult to work with because she was untruthful in regard to reporting the domestic violence. 3. A log of the communications was attached to the affidavit of caseworker Erdogan made 4 November 2015 as Annexure C. In particular, on 16 February 2015 there were 63 calls and 19 texts, on 17 February 2015 there were 42 calls, on 18 February 2015 there were 2 calls and 21 texts, on 21 February 2015 there were 5 calls and 32 texts, on 2 March 2015 there were no calls and 56 texts and on 4 March 2015, there were 21 calls and 33 texts. In addition, between February 2015 and October 2015, according to Ms Erdogan, there were 11 police events including SK approaching GB numerous times to discuss their relationship despite the current Apprehended Violence Order. COMMENT: Plainly events during the period investigated were tumultuous. In February 2015, SK was assaulted and commenced separating from GB. At Burwood Local Court, GB expressed his rejection of SK. In March 2015, SK experienced the Final Orders removing SB from her care. The large number on 16 to 18 February 2015 immediately followed the date of the Court-appointed clinician Dr Gray's report and her interviews of SK and GB. The large number of contacts between 2 and 4 March 2015 preceded the assault in relation to which GB was charged with actual bodily harm on 11 March 2015. The list contains raw numbers of communications only, not of duration or of content. The plaintiff explained that the raw numbers do not represent achieved communication. Quite simply, GB was refusing to communicate with her. The raw numbers are evidence of attempted contact, not permitting extent of communication. In my opinion, that SK exercised extreme effort to communicate with GB in the tumultuous environment of separation of their relationship and in her desperate want for a marriage which would work and in which she would have the care of SB; is not difficult to understand, and may be representative of her traditional and culturally based values. Indeed, SK gave evidence of her visiting GB when he was incarcerated for some months before deportation to deliver clean clothes and food to him. In these reasons, I refer to the observations of ethnically Punjabi clinical psychologist Khatri and ethnically connected clinical social worker Rajan. With cultural barriers aside, SK was not as protective in regard to disclosing her relationship with GB. In their independently reported opinions, SK did have insight for the consequences of domestic violence in the household of a child, specifically SB. In any event, GB has now been deported. 1. On 2 July 2015 and on 1 August 2015, GB complained to police that SK's approaches were interfering with his work. On 1 August 2015 that SK arrived at GB's work, demanded to see his mobile phone and in the course of an ensuing argument during which she took his mobile phone to her car, he smashed the window in order to retrieve it. COMMENT: Dr Gray in her final clinician's report dated 11 December 2015, in my view, fairly summarised the bulk of events of that year from a perspective relevant to considerations here in the following terms: "9.7 She stated that after his arrival in Australia, she tried to make her husband happy and that she had complied with his requests that she not discuss their arguments and violence she experienced with the counsellors at Jannawi Family Centre. She stated that she was shocked when she discovered that [GB] had made an application for [SB] to be restored to his care, independent of her in April 2015. 9.8. It is my understanding from the documents provided that [GB] was sentenced to a prison sentence from 17 June 2015 until 16 September 2015, however, these dates appear to conflict with the reported history given by SK about her social meetings with her husband in August 2015. The documentation provided details [of] mobile calls made from [SK's] mobile phone from February 2015 until September 2015. From the information provided in these records, it appears that extensive attempts were made by [SK] to call [GB] during these months. Given the way that the data is presented in these records it is unclear whether the extensive number of calls made by her to [GB] were records of actual telephone conversations or just attempts by her to contact him, given the short duration of many of the calls. In any event they appear to represent a pattern of persistent attempts to contact [GB]. When asked about her attempts to communicate with her husband, [SK] said she did call him. She said that sometimes she would leave messages for him and that sometimes he would answer the calls. She said that in the previous couple of months prior to the October 2015 assault [GB] had been more affectionate to her when he spoke to her on the phone and that he had started contacting her, albeit with a request that she obtain a loan for him. It is apparent that from her account of her perception of her relationships with [GB] from May, 2015 until October 2015, that she was aware that her husband did not want to live with her. However, she also reported that she was influenced by the pressure he applied to her not to attend Court appearances where he was charged with criminal matters against her. She also reported that [GB] reported that if he was deported she would be unable to survive alone and look after [SB]. She also reported that he repeatedly told her that even though there were lots of beatings between couples in India, spouses did not leave each other. She reported that due to her husband's insistence that he live alone, she began to question his motives for moving to live in Australia. She stated that she had recently come to understand that he had married her in order primarily to live in Australia, rather than to be her husband and to be a member of her family. She became highly distressed in her denial of the extent of apparent phone calls made to [GB] as indicated by the phone records. Although she significantly minimised the number of attempts she made in communicating with him on the phone, she stated that when he ignored her many thoughts would come to her mind about her belief that [GB] had spoiled her life. She stated that in retrospect, she did not think her husband had that feeling of a relationship with her although she had feelings for him. She reported that she now understood she had been used as a vehicle for her husband to gain Australian residency, but that in her mind she had wanted him to change and for them to live like a family". (bold added) 1. On 19 August 2015, SK obtained her Certificate 3 in Aged Care and in mid-October 2015, she regained employment with her prior employer Just Better Care, which employment she presently retains. 2. On 24 October 2015, GB was imprisoned following a further domestic assault of SK over an argument concerning his request that she provide him with a monetary loan for the purchase of a car. GB remained in prison until 28 January 2016, when he became detained at Villawood Detention Centre from which on 30 August 2016 he was deported. 3. On 1 February 2016, SK's legal representative (Malos), having obtained instructions without the use of a Punjabi interpreter, conceded in the Children's Court that SK did not contest that there was "no realistic possibility of restoration" for the purposes of s83 of the Care Act. The transcript reads: (Transcript 1 February 2016, page 6, lines 1 to 7): MALOS: "So essentially I've been able to get instructions from the mother that she is not in a position to press the Court today for the restoration of the child [SB] to her care. She realises that she has work to do. She is in the process of doing that work, and I've explained the provisions of s90 to her. And I invite your Honour to make a finding in relation to the mother that there is no realistic possibility of restoration to do". (Transcript 1 February 2016, page 6, line 46): HER HONOUR: "… on a without admissions basis there is no realistic possibility of restoration to the mother [SK] of the child [SB] born 2 July 2014". (Transcript 1 February 2016, page 8, lines 3 to 6): HER HONOUR: "So it is the Care Plan, Permanency Plan, Minute of Care Orders same date of course, 16th of the second. Mother doesn't seek to rely, does she Mr Malos?" MALOS: "No your Honour". 1. On 15 February 2016, Addendum Care Plan was filed. 2. On 23 February 2016, SK's legal representative (Malos) informed the Children's Court that having obtained the assistance of a Punjabi interpreter, he had become aware that he had misinformed the Court of SK's concession that there was "no realistic possibility of restoration". 3. On 8 March 2016, SK's legal representative offered no case of substance. The transcript reads: (Transcript 8 March 2016, page 2, lines 30 to 44): MALOS: "… I've indicated to your Honour the advice that I've given to the mother. That advice has not been accepted. My instructions only extend so far and that is to ask you to return [SB] to the mother's care. She has no evidence that she can file that the relationship with [GB] is at an end. She has no evidence to file which would contradict the clinician's assessment of no restoration to the mother in view of the previous history. She's left only with a plaintiff plea to your Honour that she be allowed to resume her relationship with her child in the same household that she resides with her two other children who have been in her care throughout. In the event that the Court doesn't agree with her respect she does make a further plea that the child placement not be changed, and that she be permitted to continue to have reasonable contact with [SB]. That's as far as I can take the matter today your Honour". 1. On 8 March 2016, Final Orders for removal of SB from SK's care were made in the Children's Court. 2. On 13 May 2016, SB was placed in long term foster care with prospective adoptive carers selected by Barnardos Family. DETAILED CONSIDERATION OF KEY EVENTS 1. Dr Smythe remained SK's GP at the date of hearing. Canterbury Hospital Mental Health Unit remained SK's specialist treating mental health facility. Dr Smythe has remained informed of SK's mental health course, including in regard to the domestic violence and child protection issues with which these proceedings deal. Between August and December 2014, Dr Smythe referred SK to Ms Khatri, a Clinical Psychologist, who was familiar with SK's language and culture. On 5 September 2015, Dr Smythe referred SK for assessment by Satyan-Rajamanis Rajan, Clinical Social Worker, in regards to her psycho-social issues. 2. Consultation with psychologist Ms Khatri in 2014 (nine sessions) and the Rajan (social work) assessment in September 2015 were the opportunities for SK to engage in persons understanding of her Punjabi culture and values. In her report of 24 November 2014, following neurological therapy commencing 1 September 2014, Ms Khatri reported: "[SK] presented to therapy with depressive symptoms and reported particularly stressed about her situation, which includes her son being taken off her by FaCS and the events surrounding it. [SK] has expressed guilt and remorse over her actions, and appears committed to get her son back. We have discussed several issues in therapy and she has engaged well in the process. We have been working on providing her with psycho-education about her depression, self-harm, recognising triggers for stress, working towards being responsive and not reactive, emotion regulation, effective communication and self-care. [SK] appeared teary and tired in our session today, due to multiple appointments. However seems determined to do everything she can. She spoke fondly of her son [SB] as she came to the appointment right after meeting him, and it was observed that her eyes lit up and she had a big smile on her face ("he is getting older now, he is so cute! I didn't want to leave him"). The purpose of this letter is to confirm that [SK] has regularly attended her psychological therapy appointments and displayed improvement in insight, mood and managing stress. I would also like to comment that personally I DO NOT agree with the diagnosis of Borderline Personality Disorder based on my assessment, treatment and experience with her." (Bold added) 1. The Secretary/first defendant points to a Canterbury Hospital note entry recording Borderline Personality Disorder. Borderline Personality Disorder is an impression contained in the clinical notes of perinatal psychiatrist Dr Woods at Canterbury Hospital Mental Health Unit in about July 2014. The observation is summarised in notes of 24 July 2014. It reads: "No pervasive mood disorder or major mental illness. Longitudinal behaviour consistent with Borderline Personality Disorder. Currently at low risk of self-harm/harm to others but as previously documented, there are concerns regarding her behaviour when distressed due to interpersonal conflict." 1. During oral evidence, specialist clinical psychiatrist Dr Ali agreed that the behavioural issue identified on the history was personal control of behaviour when distressed due to interpersonal conflict. Dr Ali was challenged in cross-examination on diagnosis but was adamant in his rejection of a diagnosis of Borderline Personality Disorder and maintained his diagnosis of Depression. I will come to Dr Ali's evidence in more detail in these reasons. 2. Treating GP, Dr Smythe, referred SK to a clinical social worker, Rajan. On 5 September 2015, Rajan reported SK's self-harm during pregnancy and its relationship to arguments with GB over his infidelity, had a psychological impact on her. He reported, relevantly, disclosure of living with GB in Australia in the following terms: "[SK] explained that she was very much upset and angry due to her husband's mistrust behaviours. She couldn't cope very well whilst living with a husband under such circumstances. She was reluctant to report [to FACS] due to social-cultural stigma and taboo. [SK] has expressed that she was under immense pressure in her new relationship, since she fell pregnant, she did try to salvage her second marriage. Unfortunately [SK] couldn't tolerate her husband's physical and verbal aggression, and also worried about her teenage children's life. She was finding it [a] quite helpless situation and holding her emotion within herself for [a] long time. During the counselling session, she was in tears, it was observed that the patient was finding it difficult to accept the divorce as per her cultural values and beliefs. She state[d] that she tried to change her husband['s] behaviour and planned to rebuild the family together with her husband (GB). Unfortunately, on 13 February 2015, [SK] visited to local police station at midnight and presented her issues and complained about her husband['s] physical aggression over an argument about their financial issues etc. Their argument resulted in bodily harm to her, she alleged, and subsequently the police complaint, lodged the AVO against her husband to protect [SK] and her children['s] safety. Now [SK] believes that she may not be able to live together with her husband as a family." 1. In my opinion, with his opportunity of cultural connection with SK, clinical social worker Rajan identified the legitimate cultural reasons for what the caseworkers, whose affidavits were read in this appeal, assessed as a reluctance to truthfully disclose domestic violence within the home, and failure to express her appreciation of the risk of domestic violence to her children. 2. Quite plainly, clinical psychiatrist Khatri and clinical social worker Rajan benefited from receipt of uninhibited disclosure, not only of the domestic violence situation, but also of SK's appreciation of the helplessness of her pursuit of saving her second marriage. 3. Importantly, each of those specialist clinicians did not find that SK displayed an inability to become sufficiently attuned and responsive to SB's developmental needs or lacked insight of the risk to children from domestic violence. Clinical social worker Rajan specifically recorded that SK confirmed her appreciation that GB's aggressive behaviour was "posing high risk to herself and children's life in danger" (quoted as written). 4. The observations of specialist antenatal psychiatrist Dr Woods on 24 July 2014, clinical psychiatrist Khatri on 17 November 2015, and clinical social worker Rajan on 5 September 2015, are unanimous in observing SK's bonding with SB during her limited opportunity for contact with SB. 5. In her report dated 5 May 2016, Dr Smythe confirmed she has known SK as a patient of the medical centre at which she works since 2009 and been her regular GP since December 2013. Dr Smythe confirmed that SK's depression became much worse in about April 2014, consequent of her weaning herself off psychotropic medications prescribed for depression and anxiety, for the benefit of the health of SB during her pregnancy. Recording knowledge of SK's long term mental health, and of the domestic violence, Dr Smythe referred to SK's discharge from the Canterbury Mental Health Service as they saw no need for intervention. Dr Smythe concluded her report with "She is quite well physically, quite stable emotionally since separating from an abusive husband. I feel she is perfectly capable of raising children" (bold added). 6. A Summary contained in Application and Report Initiating Care Proceedings, being the original application seeking an Interim Order for Allocation of Parental Responsibility to the Minister, dated 14 August 2014, summarised the caseworker assessment of the situation as at 20 June 2014 in the following terms: "Community Services Helpline received a non-risk of significant harm report. The report discussed the same incident as reported on 17 June 2014. New information in this report indicated that every time [SK] gets distressed, which is usually when she has fights with her partner in India she harms herself, and the concern is that the behaviour will be moved onto the unborn when he/she is born. The report stated that [SK] "has been quite ambivalent" around this pregnancy but her partner in India wants to have the unborn. The report stated that [SK] is not on any medication and she doesn't have a treatable mental illness and that her condition is personality and stress-based behaviour that is untreatable via medication at this time". (bold added) 1. This Summary identifies the concerning stressor as SK's poor marital relations with GB, specifically as shown in the above notes for April and June 2014. Presently SK has adolescent sons attending high school in Sydney, employment in Sydney and in the absence of any evidence suggestive of her departing to rejoin with GB in India; he and all of the stressors which he brought to the relationship, are out of her life and the household in which SB would live should a restoration order be made. 2. In addition, in June 2014, SK was providing for BK and RK such that police and caseworkers observed them to be mature, composed, well-cared for and exhibiting no signs of stress, despite SK suffering such impoverishment that she was unable to acquire a cot or pram in preparation for the birth of SB. 3. Now that she has acquired a Certificate 3 and is regularly employed as a care worker, six days a week, those financial stresses have assumedly been quenched. 4. Whereas because of her pregnancy, during the events of April to June 2014, SK refrained from taking medication to assist her psychological health, she would be able to take that medication now. 5. The statement contained in the Summary to the Application wrongly attributed SK's not taking medication to the nature of her mental illness being untreatable. SK suffers depression for which she has been prescribed medication since 2009. SK interrupted her taking medication only because of the pregnancy. 6. Specialist consultant psychiatrist Dr Ali's opinion given in Court was that SK had no intention to harm her unborn child during those events in June 2014. Essentially this means that Dr Ali's expert opinion relieves the concern of Community Services, arising from the anonymous report's concern, that SK would direct her uncontrolled behaviour from self-harm to SB. Finally, Dr Ali gave clear evidence during significant challenge under cross-examination, that SK had suffered major depression and that present and ongoing psychological health is manageable with medication, GP monitoring and consultation as well as other services as will be dealt with later in these reasons. 7. Accordingly, each of the concerns of Community Services expressed in June 2014 which concerns must have weighed heavily on the Children's Court in making the original Interim Order placing parental control in the Minister and in the making of the Final Orders; are dissipated or substantially relieved on the evidence of the present environment in SK's household, including in regard specifically to her mental health. EVIDENTIAL ERROR IN OBTAINING FINAL ORDER 1. It is important to note that the affidavit of Casework Manager Foley filed in the Children's Court on 2 April 2015 at [12] recorded that in February 2015 it was reported that SK had a prior history of self-harm including "by stabbing her abdomen with a knife, resulting in the baby being born early, the baby survived in good health. [SK] continues to self-harm and then alleges her husband caused the harm." In cross-examination, Ms Foley immediately conceded that those events never occurred, and that that history was patently wrong. That evidence was against SK's interest. I was not informed of what, if any, use was made of the evidence in that paragraph in the Children's Court proceedings. 2. Firstly, the core reasons for the Secretary's Applications in that Court for parental responsibility to be placed with Minister were the security from harm of SB if left at the hand of SK, and the risk to SB presented by the mental health and any lack of behavioural self-control of SK. Plainly an allegation of stabbing of her abdomen with a knife resulting in the baby being born early but surviving is a far more serious scenario than punching of the abdomen which, on full medical investigation, was shown to have not caused the baby any harm whatsoever. 3. Secondly, the allegation that SK continued to self-harm and then alleged her husband caused the harm was opposite to the true fact that the self-harm which only occurred on 4 April 2014 and 13 June 2014, did not represent a continuing course. 4. Thirdly, GB did continue to inflict violence upon SK, and there is absolutely no evidence of her self-harming and falsifying allegations of her husband's violence during that continuance. 5. Fourthly, no self-harm by SK caused any harm to SB, or to BK or RK identified in the evidence. 6. Fifthly, SK's self-harm certainly did not result in SB being born early. SB was born at 33 weeks gestation due to eclampsia, a natural condition suffered by SK. Butterworths Medical Dictionary (2nd edition) defines eclampsia as "An attack of convulsions; the word is now almost entirely confined to that associated with pregnancy … the essential feature being convulsions accompanied by high blood pressure". 7. When cross-examined on the entry at [12] of her affidavit made 2 April 2015, Ms Foley provided the following answers: "Q. Would you please be able to recall what was the report that you were reading that indicated [SK] was self-harming during her pregnancy by stabbing her unborn with a knife? A. I realised that information isn't correct but that was what was reported in this report that was received. Q. Are you able to indicate to the Court what the source of that report was? A. No, all our reports are confidential. Q. In terms of paragraph 12 where you say, "Self-harming during pregnancy by stabbing her abdomen with a knife resulting in the baby being born early", is it your understanding now that that was not the case at all? A. I knew it wasn't the case when I wrote it but that was what was reported in the report. Q. Is there any reason why you didn't then indicate in your affidavit to the Children's Court that you knew this not to be the case? A. The Children's Court had the information around what the – like that the injuries were bruising and [SK] was self-harming herself and not stabbing, so I, I don't know why I didn't. I didn't feel the need to articulate that as the Court already had this information. Q. Do you think it would have been important that the Children's Court know from you that, "Look, you got that information, for example, but you've since found that that was incorrect"? A. Well, I knew the information was incorrect at the time. It was well after [SB] was brought into care. Q. Because the wording "Stabbing her abdomen with a knife resulting in the baby being born early" is quite serious, isn't it? A. Absolutely. But that was the wording that was used in the report. Q. You were just quoting from that report? A. Absolutely. Q. Would you agree with me that the only incident which involved any harm during pregnancy by [SK] to her abdomen was, indeed, where she had punched herself? A. Yes …. HIS HONOUR: Could I then ask what am I to make from the sentence "[SK] continues to self-harm and then alleges her husband caused her harm"? Is there evidence of continuing self-harm, or is it just the one occasion of bruising during pregnancy? ANDERSON [COUNSEL FOR THE FIRST DEFENDANT/THE SECRETARY]: As I read it, your Honour, that's the – not putting – I think this is what the witness has said too, it's just reporting what the report said. HIS HONOUR: So that is also is in what – thank you, thank you. ANDERSON: And of course it goes on further and says that its reported that [GB] avoiding all contact et cetera. The reporters, your Honour, might not be aware but as the witness indicated, their identities are generally confidential. HIS HONOUR: I'm not worried about that. I want to know. ANDERSON: S.29. HIS HONOUR: I'm not worried about that. I don't imagine how an officer would determine that within their province to not include information that comes in a report and I also accept the witness and Ms Conte-Mill's [Counsel for the plaintiff SK] cross examination has drawn out which is that if the affidavit was more complete it might have referred to that fact." 1. In relation to the case manager's evidence, I make the following observations which concern me: 1. It was illogical or reckless for an experienced officer to place truly significant and influential, but false, evidence before the Children's Court on an assumption that because there was evidence of two other, less serious events of self-harm; the Court would recognise as false this much more serious event. In particular, the allegation as recounted at [12] of her affidavit does not attribute a date to the false allegation of SK stabbing herself. The paragraph reads as though the event is to be timed as having occurred during the pregnancy. It was plainly available to the reader of the affidavit to accept it on that basis. 2. Whilst the case manager may have considered reference to the anonymous report for completeness of disclosure of matters motivating the course taken by FACS in consideration of the welfare of SB and the fitness of SK and GB for parental responsibility; that the case manager knew at the time of making her affidavit that the reported allegation was false, ought to have compelled her to clearly state that falsity for the Court. 3. In my opinion, paragraph [12] of case manager Foley's affidavit made 2 April 2015 should not have been read in the Children's Court or in this appeal in the case of the Secretary/first defendant without the affidavit including appropriate correction. 4. In my opinion, it is unfortunate that cross examination was required to disclose the falsity of the information. This permitted that, had Counsel for SK not picked it up for correction; there would have been a grave risk of injustice to SB and to SK. 5. At the time of hearing of this appeal the affidavit had been filed more than two years in the Children's Court. Ms Foley's subsequent affidavits filed in that Court, made 4 September 2015 and 15 February 2016 did not correct that false allegation, nor did affidavits of three other caseworkers filed in the proceedings after its date, all of which affidavit evidence was filed in the Children's Court proceedings before the making of the final orders on 8 March 2016, and were read by the Secretary/first defendant in this appeal. 1. Pursuant to s79(3) and s83(7), the Children's Court was required to consider and expressly find that it was satisfied in making the Final Order allocating parental responsibility to the Minister that permanency planning had been adequately and appropriately addressed by the Secretary (s83(3)). Pursuant to s10A, permanent placement for SB meant removal of him from the care of his mother SK (and at that date his father GB). On the making of the Final Order his Honour stated: "HIS HONOUR: So the issue for me, mum is what's best for [SB]. I've read the material, I've heard the concerns and really looking at all the material I have to form the view that the best thing for [SB] is to be in the care of the Minister. That may be disappointing to mum and I accept she loves [SB] but on the basis of the evidence that is my view at this stage …" (bold added) 1. The transcript of proceedings in the Children's Court (contained in the Secretary/first defendant's tender bundle in this appeal) shows that Ms Foley's affidavit was not corrected. No party addressed me on the significance of the falsity of paragraph 12 of the affidavit of Ms Foley made 2 April 2015, if any, in the making of the Final Orders. His Honour had the Court-appointed clinician reports dated 20 February 2015 and 11 December 2015 by social worker, Dr Gray. Those reports do not include those false facts in the history recounted. 2. The transcript does not record that his Honour further exposed his reasoning and it appears that the legal representative for SK did not advance submissions nor raise any contest as to the evidence. 3. I have already referred to an inaccurate entry in the Summary to the Application and Report Initiating Care Proceedings filed in the Children's Court on 5 August 2014. The content is recounted from a "report[s]" concerning SK having voluntarily attended hospital on 17 June 2014 to check on the health of her unborn baby, SB, consequent of her punching her abdomen four days earlier. Those recounts include an expression of a concern by the anonymous reporter that SK's self-harm will be directed at SB after birth. The recount includes "the reporter stated that [SK] guaranteed the baby's safety with her current mental state; however, she couldn't guarantee the baby's safety if there is another fight with the father". The report stated the fights have been happening a lot, and that once the baby is born, the concern is that [SK] may see the baby as an "embodiment of the father and harm the baby". The reporter's assessment of the situation was that "the mother has passed her anger toward the husband to the baby". 4. Caseworker evidence does not repeat that serious allegation, support the accuracy of the allegation by factual or expert evidence, nor does it correct the allegation. The evidence does not disclose whether the allegation was made by a person of sufficient qualification to relevantly arise at the "concern", such as a clinical psychologist or psychiatrist. The Court-appointed clinician, Dr Gray, does not refer to it. 5. Quite obviously the safety and welfare of SB, if placed in the care of SK, is the paramount consideration. It is not a small matter, in my opinion, that such allegations are left, as it were, floating and without check by evidence of substance or by correction. No party in the proceedings addressed me on a basis that the evidence supported a finding of SK's anger with GB would be directed to SB if SB was placed in her care. 6. In the circumstances, I consider it best to rely upon the expert opinion evidence in this appeal, including that of the treating clinical psychologist, Ms Khatri, treating clinical social worker, Mr Rajan, treating long-term and mental health-briefed GP, Dr Smythe, and most importantly, the opinion of consultant psychiatrist, Dr Ali, in relation to which the Court was provided the opportunity of observing Dr Ali in evidence under cross-examination of counsel for the Secretary/first defendant and Independent Legal Representative following the parties having provided to Dr Ali so much of the clinical records as they considered relevant. Dr Ali's opinion, competently given and discussed elsewhere in these Reasons, was that harm to SB was not the focus or intention of SK when she punched herself in the abdomen on 13 June 2014, but rather harm to herself. THE PRESENT LONG TERM PLACEMENT 1. SK complains of health care of SB provided by the long-term foster carers. These complaints, in my view, reflect the measure the intensity of affection SK, as the natural mother, has for SB. They are not a basis for finding that the long-term foster carers provide inadequate health or well-being care for SB. 2. The only significant issue with the long-term care placement, in my view, is concern for SB being in a culturally appropriate environment. 3. I have considered Dr Gray's expert observations in regard to the importance of the relationship between SB's Punjabi culture and his development of personal identity. The plain fact is that the long-term carers are not of Sikh religion or of Punjabi culture. SK's concerns that the long-term carers singing Punjabi bedtime songs, speaking Punjabi greetings, playing Punjabi music and cooking their best effort of interpretation of Punjabi food once a week; does not meet the natural cultural identity immersion which SB would experience in SK's household, is unquestionably well-founded. 4. I do not understand there to be any dispute as to the importance of cultural identity. The fact is that Barnardos Find a Family were unable to identify long-term carers of SB's birth culture. In written closing submissions the plaintiff presses only the significant factor of cultural mismatch in a long-term placement as a basis of complaint about that placement. I agree. 5. On 18 April 2016, caseworker Chuan informed SK of the long-term placement of SB in the Shellharbour area, far distant from the Campsie home of SK and the school and society of GK and RK. I quote from part of the entry of Ms Chuan of that meeting, because in my opinion, what is recorded as having been expressed by SK, was an understandable perception from a mother seeking restoration of her child on the facts of this case: "I told [SK] that they were a two parent family with two young daughters and live in the Wollongong area. I told [SK] that they were Australian but had been in India several times and were open to Indian culture. [SK] held her head in her hands for some time before responding. [SK] said that she had put an appeal at the District Court. [SK] said she has been treated unfairly by the Court system and said it was unfair that her child was suffering because of that. [SK] expressed that it was unfair that a decision was made at Court and she was not given a chance to speak. [SK] talked about her solicitor and she was angry about how he had told her that [SB] would stay with [first temporary foster carer] until [SK] applied for a S.90 … [SK] expressed her concern about how [SB] would cope leaving [first temporary foster carer] to a new family. [SK] then said Wollongong was so far away and how could they bring [SB] close to the temple when they lived so far away." 1. Long-term placement meant greatly reduced contact between SK and SB. Following assumption of SB into care in August 2015, SK was having contact with SB of one hour three times per week. From November 2015, contact was reduced to one and a half hours twice per week. On 14 March 2016 caseworker Chuan informed SK by letter that contact with SB would be reduced through a diminishing schedule to two hours, six times per year. The contact was to be supervised. 2. Ms Chuan's affidavit includes extracts from extremely emotional SMS messages from SK stating her desperation in wanting her child SB back and on more than one occasion, expressions of killing herself in consequence of her children going to another family. Ms Chuan's affidavit repeats the opinion expressed by other caseworkers that those communications show that SK had not been able to demonstrate insight into the impact of her mental health upon her children in the past and that it continues to be unresolved. 3. In her affidavit made 23 May 2016, Ms Chuan describes contact prior to the making of the Final Orders on 8 March 2016 between SK and SB as including SK displaying affection toward SB, engaging well with the first temporary foster carer, and speaking in Punjabi to SB. Ms Chuan describes that SB displayed behaviours in contact with SK such as pinching and scratching SK and other children. She says SK usually needs support from [first temporary foster carer] or caseworker support managing SB's behaviour. From her observation of contact between SK and SB after the making of Final Orders, Ms Chuan recorded that SB's behaviours needed to be managed, that she had observed SB to: "act out to other children and [SK] … pull other children's hair and grab and scratch their faces. I've also observed [SB] to hit and scratch [SK] and pull her hair. I have observed [SB] become distressed, manifesting in crying and screaming. I have observed [SB] to seek comfort from [first temporary foster carer] instead of [SK] during these periods of distress". 1. The records of the first temporary foster placement show that the foster carer found SB's behaviour could be challenging in the absence of SK too. Ms Chuan's reports are to be viewed in that context. 2. Barnardos case manager, Ms Robinson, by affidavit 23 May 2016, described SB's contact with SK after SB was placed with the long-term carers on 13 May 2016. Her affidavit informs that prior to the current long-term carers being approved by Barnardos, long-term placement of SB had been offered to another approved carer family which declined the placement due to not being able to meet SB's cultural and religious needs. There being no cultural matches within the agency, the present long-term carer couple received SB's placement, albeit "not a cultural match". Barnardos designed a Cultural Care Plan on 19 May 2016 in consultation with SK and GB. I accept Ms Robinson's evidence given orally and in her most recent affidavit of 7 July 2016 that SB has settled well in the new home environment of the long-term placement carers. He is meeting all appropriate milestones and there are no medical issues identified in any part of the evidence of significance. 3. I make the following further observations concerning SK's conduct in the period of long-term placement since 13 May 2016: 1. The circumstances of SB, at the time of the hearing, are consistent with the apparently undisputed fact that the long-term carers provide a home environment of safety and nurturing. Even in regard to culture, the evidence shows that the long-term carers are open to and have committed to introducing, to a practical extent within the Australian lifestyle of their own family, a Punjabi and Sikh exposure for SB including attending special events with his family at the Sikh temple. The evidence acknowledges that the long-term carers have made efforts to acquaint SB with the identity of BK, RK and SK including by photographs displayed in their home. There is no contest to the observation that their efforts in these regards are commendable. 2. During contact on 2 July 2016, SK noticed that SB was suffering from a bad cold for which she was informed SB was not being provided medications and that he was losing a fingernail, his finger having been jammed in a door. It is recorded that SK said: "I worry about my child, he is very sick. They not give him any medicine, not even Panadol", and insisted that SB be referred for further medical attention albeit the long-term placement carers had already taken him to a GP. It is recorded that in relation to the damaged finger, SK was informed that the injury occurred when the first temporary foster carer's daughter had accidentally shut a car door on SB's finger while he was living there. SB had not been with the first temporary foster carer for six weeks. SK raised her voice, saying "You lying, I seen [SB] in Wollongong and his finger not like that and I went over him. [First temporary foster carer] look after him very well". 3. SK made these complaints at 9.26 am on 7 July when called by the Find a Family Programme Manager Adoption, Ms Willick, and Ms Robinson. SB's finger had in truth been injured recently but at the home of the first temporary foster carer. SB had apparently not been informed at the time. 4. In my opinion, that SK's reaction displayed that she felt powerless and under great tension when confronted with SB being unwell and having suffered an injury of which SK had not been notified; ought not be held as behaviour to be placed in a category of mental health or a display of self-control issues which would disqualify her from parental control. 5. Whereas caseworkers assess her suitability for parental responsibility partly upon what they find to be her aggression and emotional opposition; the equally available perspective is of an appropriately focused mother desperate to have the care of the health and wellbeing of her birth child. 6. Documents within Exhibit B indeed contain repeated reference to SK's compliments of the kindness and care observed by SK to be provided by the first temporary foster carer. Exhibit E confirms SK repeatedly stating her desperate want for restoration of SB's care to herself and of her enquiring as to his welfare. 7. The records show her frustration and stress that she was restricted to making her enquiries of caseworkers during business hours, being the hours of her work and in circumstances where she was not permitted to receive or make phone calls whilst at work. Indeed at 4.30 pm on 20 July 2016, SK called caseworker Willick, saying that she had called at 1.28 pm enquiring after SB's welfare but that the call had not been returned. She was informed that while Ms Robinson was on leave, Ms Willick "Won't always be able to return calls straight away", in response to which SK hung up. A few minutes later SK called Ms Willick to inform her that she "Wants her child back, and that her sister is coming to help her". She informed Ms Willick that she had "nothing with [GB]" and of her goal for SB to grow up in her culture. 1. That there was tension between SK and caseworkers in the scenario of his long-term removal from her and her concerns regarding her representation on the making of the Final Orders, was natural and understandable. 2. On 28 July 2016, Care Plans were mailed by Barnardos to SK. That same very natural tension would be understandable for a mother in SK's position on receipt of a document entitled "NSW Care Plan, Barnardos" identifying the "Programme/Service" as "Adoption Programme Illawarra", and identifying Ms Willick as the manager and Ms Robinson as the primary carer. The document identified the placement as "Foster care – long-term placement with view adoption", and gave the reason as "No current possibility of restoration of [SB] to either of his birth parents". 3. It must have caused SK further tension that despite her having informed caseworkers one week earlier of her seeking assistance by her sister coming to Australia, the document included: "Q. Could a relative or family friend provide support to the child/young person in this placement? A. No relatives or family members have been identified by FACS or Barnardos to provide support to the placement." EVIDENCE OF THE PLAINTIFF 1. Since his removal from her care, SK has by affidavit supported applications for restoration to her of SB. The affidavits are dated 1 September 2014, 13 October 2014, 16 December 2014, 15 April 2015, 18 September 2015 and (in this appeal, in response to the affidavit evidence of caseworkers), 4 August 2016. 2. Exhibit C in her case is a letter from the President, Sri Guru Singh Sabah, Sikh Association of Sydney Inc., referring to SK's attendances at the temple, including doing volunteer work, and concluding "We feel she is perfectly capable of raising her son". 3. SK does not put herself forward as an intensely regular devotee, but the importance of the letter is that it conveys SK's access to her cultural community in which SK would find support. 4. Exhibit B is the Year 12, Semester 1 2016 school report of De la Salle College, Ashfield, for BK. The school report is consistent with all other evidence in the case, which included observations of social workers, caseworkers and indeed, police, of the politeness and maturity of SK's adult sons. 5. SK was cross-examined about why BK had been absent seven days, six of which were unapproved in Term 1. No doubt the cross-examination was directed towards SK's evidence that at 6 pm of an evening she receives her work roster for the following day which will normally involve four or five attendances to deliver home care between the hours of 7.00 am and 7.00 pm. SK's completely acceptable evidence was that the six unapproved days were consequent of BK having surgery to remove four wisdom teeth and recuperation at home as directed by his doctor. Indeed, SK had provided the school with a medical report and the absence was therefore inappropriately identified as "unapproved". 6. Without exception every subject teacher for BK reported that he completed assessed tasks, was co-operative, organised, completed home learning tasks and was punctual to class. It is a report from all six teachers of satisfactory behaviour, performance and display of responsibility for self of a seventeen year old adolescent boy. 7. RK's reports from the same school equally corroborate that earlier and other evidence of his excellent adjustment development as an adolescent. 8. On the final day of the hearing, BK made a statement from the bar table which appears at transcript page 309 lines 30 to 47. 9. Section 103 of the Care Act provides that the Court may obtain and consider the views of siblings. I considered the opportunity to hear his views and to observe his presentation would be of assistance. All parties concurred with that course. Interests of BK and RK are to be taken into account. 10. BK appeared immaculately presented in his school uniform and spoke with a maturity and gravity identifying him as someone who would appropriately be called "a fine young man". Whilst his statement assuring the Court "I'd just like to say that she's a good mother and she deserves to have a complete family" must be valued in the context of a loving son supporting his mother; what was significant was his personal carriage and appropriate presentation in what, for a person of his age and in the circumstances, must have been an intimidating forum. BK's interest in and want for attachment with SB is apparent from the records of his contact with SB. 11. As I have said, the whole of the evidence supports the objective observation relative to assessment of SK's capacity as a parent, that through the much documented history of her struggle through her hardships of life to which much of the evidence is directed, she has produced the measure of parenting represented by BK and RK. That is a good measure. 12. The plaintiff was adamant in cross-examination that the two instances of self-harm during her pregnancy occurred at moments of extreme stress, and that she did not at any time want to hurt her baby. 13. Her evidence caused me to accept that she managed to suffer the domestic violence inflicted upon her by both JK and GB such as to keep it away from the sight of BK and RK with the exception of only one or two of the lesser incidents. 14. I observed her carefully during the giving of her oral evidence when challenged about her insight as to the effect of domestic violence upon development of children, and I accept that she is aware of that risk. The plaintiff became very upset and teary, however to my observation stoic, when cross-examined about her having taken an overdose and having told police that she wanted to die. Again, the stressor derived from GB. In that instance it was his infidelity. 15. In my view, SK showed contrition and that she had acquired an appreciation of what her history has cost her in terms of two years loss of parenting of her infant SB. When the overdose in the presence of her sons on 4 April 2014 was put to her, SK gave the following frank evidence: "Q. Do you think it had any effect on your children to see you take those tablets? A. INTERPRETER; Yep. It probably wasn't a good thing. They probably wouldn't have liked it? Q. It was something that shouldn't have happened, should it? A. INTERPRETER: It shouldn't have happened." 1. With great remorse, SK recalled that BK tried to take the tablets from her hand before she swallowed them. She conceded she had not contacted the Mental Health Service, as she understood she could have done. She also conceded, with apparent remorse, seeking an assessment of the health of the child following punching herself in the stomach on 13 June 2014, and again in circumstances when she did not seek Mental Health Service assistance as she was aware she could have done. 2. SK acknowledged that she was aware the family counselling service Jannawi gave her to understand that they held the view that she was placing GB ahead of prioritising SB because she persisted with her second marriage to GB even though the occasions of his domestic violence continued. Her contrition was, to my observation, apparent at this point of evidence in the following exchange: "Q. When you spoke to Ms O'Brien [Jannawi counsellor] she was concerned that you were going to repeat the same pattern with another partner. You understood that's what she was saying, didn't you? What was of concern was that you had said that you'd separated from [GB] prior to these incidents occurring; is that right? A. INTERPRETER: Yes. Q. I want to suggest to you, you just couldn't stay away from [GB]; you had to confront him on numerous occasions. A. INTERPRETER: Yes. Q. He reacted violently to your confrontations with him? A. INTERPERTER: Yes. Q. That's why she said that you had behaved in a way which is without safety or self-protection for yourself. You continued to maintain contact with [GB] even though he was in Villawood Detention Centre, didn't you? A. INTERPRETER: Yes. Q. How many times did you visit him in Villawood Detention Centre? A. INTERPRETER: Every day or every second day when he was moved there initially …. Q. You visited [GB] 58 times between 26 January 2016 and 13 May 2016 according to the records produced from Villawood? A. INTERPRETER: Yes, I did. Q. You provided a letter of support for him for the spouse visa application dated 4 May 2016? A. INTERPRETER: Yes. Q. You said you're fully capable to support him financially? A. INTERPRETER: Yes. Q. It's your request that he be released from the Detention Centre for you and your child? A. INTERPRETER: Yes, I wanted that because always it was in my mind that this is my second marriage, we can make it work. …. Q. Why did you visit him so often if you were separated from him since February, 2015? A. INTERPRETER: Because he was very upset and he was very lonely and he was complaining about the food that he was getting there and I'd sometimes take Indian food for him. Q. You withdrew your sponsorship for [GB] on 5 July 2016 according to your affidavit. A. INTERPRETER: Yep, because I didn't – I realised that the relationship wasn't going to be." 1. When challenged in cross-examination of not having maintained access to mental health service, SK gave answers which I accept as being consistent with the documentation, which is that she maintained compliance with her mental health plan by attendance upon her GP, Dr Smythe, who was a participant in that plan with the local mental health service. When she was challenged as to why she did not access more psychologist counselling with Ms Khatri, SK answered that Centrelink only permitted ten consultations a year, and in the period when she had not taken it up, she was without GB and coping well in her life under the care of her GP. I accept those answers. In my view, it is also significant that the psychiatric registrar of the Concord Centre for Mental Health, Dr Ho, in 2016, informed SK that she did not have to come back and he did not consider it required to prescribe for her a course of treatment other than that in which she was participating by consultation with Dr Smythe. CONSISTENCY OF INFORMATION 1. The following facts appear in the Summary to the Application and Report Initiating Care Proceedings filed in the Children's Court on 5 August 2014 and affidavit evidence before the Children's Court: 1. at [16], [43], [49], [55], [59], during admission following the overdose event on 5 April 2014, SK was "diagnosed with an adjustment disorder and mixed disturbance of emotions and conduct"; 2. at [20], [24], [25] and [32], SK was not preparing for the birth of SB by provision of necessities such as a cot and pram, nor excited about the birth; 3. at [34] to [37] of the Application, that there was concern SK might direct her anger with GB at SB; 4. at [45], [47] and [48], SK did not bond or attach with SB at birth, shown by her not visiting SB until 5 July 2014, after birth on 2 July 2014; and 5. in Managing Caseworker Foley's affidavit dated 2 April 2015, SK stabbed herself in the abdomen with a knife during pregnancy, which attack SB survived, and after self-harm blamed her husband, GB. 1. Section 93 of the Care Act dictates that the proceedings are not to be conducted in an adversarial manner, but with as little formality and legal technicality and form as the circumstances of the case permit. As required by s93(3), the rules of evidence were not applied to admissibility of evidence in the appeal. Pursuant to s93(4) of the Care Act, the standard of proof to be applied is the balance of probabilities. 2. In the course of the appeal, I addressed to counsel that whilst evidence might be admitted, whereas in another civil proceeding application of the rules of evidence would cause the tender of it to be rejected; a fair and just procedure at hearing was required, and in that regard, in my opinion, the common law development of the rules of evidence provides some general guide as to fairness. Applying those principles, in my opinion, it was appropriate for the Court to receive into consideration the evidence, such as it was, in relation to each of the matters in paragraph [161]. Where available to do so, these reasons refer to source material in relation to them. 3. In the case of "reports" of "concerns" recorded in the Summary to the initial Application and Report Initiating Care Proceedings, in my opinion, fairness demands that very limited weight be attributed to them because: 1. those reports were obtained in the context of field case work, without attribution to qualification or expertise founding the opinion of the anonymous reporter; 2. the "concern" should not be attributed the weight of expert opinion, where the factual bases for the report is either not disclosed or otherwise available on the evidence as a provable assumption of fact; and 3. each of the reports describes fact and risk observation of the reporter which is not corroborated by contextual consideration of the regularly proved facts. 1. Having considered, where available, the source material, I have either found the source evidence to be against, or not to support, each of the above bases of the Secretary/first defendant's opposition to restoration of parental care of SB to SK. Each of these factual bases appears to have gone unchallenged before the Children's Court. COURT-APPOINTED CLINCIAN REPORT 1. Dr Gray produced two reports, the first dated 16 February 2015, and the second dated 8 December 2015. She gave oral evidence, having considered the change in circumstance of deportation of GB. Dr Gray is a qualified social worker and family therapist, whose high academic qualifications include a Master of Arts in the subject "Couple and Family Therapy". At the time of her report she had completed her doctoral thesis in the evaluation process entailed in writing reports on parenting capacity. Her doctorate was awarded before the date of oral evidence. 2. Whilst Dr Gray has significant learning in her fields; having the benefit of the report and oral evidence of clinical psychiatrist, Dr Ali, I prefer his opinion on issues of mental health. In this regard, in each of Dr Gray's reports she lists Terms of Assessment as including: "a mental health assessment of [SK] and, in the event that any issues are identified, an assessment of the likely impact upon her capacity to parent the child and recommendations as to appropriate treatment". 1. In addition, Dr Gray's assessment of mental health related risk to SB included a factual error exaggerating the very significant facts of SK self-harming her abdomen whilst pregnant. 2. Dr Gray's reports at paragraphs [9.1] (first report) and [8.5] (second report) record that SK punched her abdomen whilst pregnant on two occasions. On my inquiry during day 3 of the hearing, counsel confirmed that there was only a single incident, and it occurred on 13 June 2014. 3. In her affidavit made 13 May 2016 at [42], caseworker Sivaraman appears to have made the same error. Ms Sivaraman took over from Casework Manager Foley on 14 March 2016. 4. Dr Gray observed a contact of SB with SK and his brothers, BK and RK. At [10.6] of her first report she reported: "In interview [BK] said he really liked children and he was interested to see his younger brother again … [BK] emphasised the importance of his commitment to his studies at school. He said that he attended the De la Salle College, and that he was financially assisted by the school to ensure his attendance there. He stated that he wanted to apply to join the Australian Armed Forces and to attend a course connected to this recruitment [at] the University of NSW when he graduated from high school in 2016. He presented as socially deferential and polite when seen with his mother, young brother and step-father in the family home. Neither [BK] or [RK] spoke or interacted directly to [GB]. Both boys interacted in affectionate and respectful manner to their mother [SK]. [RK] confirmed his regular contact with his father [JK] and he confirmed a desire to see his younger half-brother. Documentation provided by Community Services comments upon the maturity and polite demeanour of [BK] and [RK]. … Both [BK] and [RK] reported in interview that they had visited India, since moving to Australia and they said they remained in Internet contact with relatives there". 1. In the conclusions to her first report, Dr Gray opined at [15.1] that [SK]: "… appears to have prioritised the basic child care needs of her older children in providing a stable home and maintaining a degree of collaboration with her ex-husband in maintaining and supporting ongoing contact arrangements with him. The observed deference and conviviality observed between [BK] and [RK] and with their mother [SK] at the family interview and their reported and maturity and reliability noted in the documentation, appears to reflect some functional and persistent parental skills in [SK] in providing some consistent care-giving." 1. At [13.3] of her first report, Dr Gray reported that she observed SK to interact very gently and patiently with SB, changing him, complimenting him, reassuring him and talking to him. Dr Gray observed that SK sustained interest in everything SB did, and that SB appeared highly elated in the company of his parents, remained calm, alert and sustained an interest in their actions. She reported: "The positive nature of this session appears to be consistent with the nature of the previous contact records provided in the documentation". 1. At [14.1] of her first report, Dr Gray consulted the Punjabi speaking clinical psychologist, Dr Khatri of Uplift Psychological Services, whose report I have referred to in these reasons (above). Dr Khatri reported to Dr Gray that SK had "displayed an improvement in her insight, mood and management of stress" and that Ms Khatri "did not consider that the diagnosis of a Borderline Personality Disorder was appropriate". Dr Khatri reported that SK had expressed remorse for her actions of self-harm. 2. At [14.2] of her first report, Dr Gray recorded the results of her enquiries at Jannawi Family Centre where SK and GB had been offered weekly sessions on parenting and on education and understanding of the child protection system in Australia, and on issues of infants sleeping, child development, physical, emotional and psychological safety. The counsellor stated that [SK] had developed a willingness to acknowledge and discuss her own reactions of anger and expression, and that where as previously SK had minimised the domestic violence, she had developed to openly acknowledge it as well as "the dysfunctional nature of her personal beliefs and consider and rehearse alternative responses to accumulated pressures and habitual patterns of thinking and behaviour". 3. At [15.2] of her first report, Dr Gray observed "the onset of [SK's] intra-psychic stress" emerged in 2009 coincidental with the situation of her first marriage to JK which stressors were compounded with the financial distress of her loss of employment due to regulation of persons working in home care and subsequently the "playboy" behaviour of her husband GB. She opined: "These factors appear to have cumulatively impaired her functioning". 1. At [15.3] of her first report, Dr Gray considered that SK's behavioural and cognitive traits could be considered under the differential diagnosis of depressive mood disorder rather than borderline personality disorder. I note that this diagnosis is consistent with Ms Khatri and Dr Ali. 2. At [15.4] of her first report, Dr Gray made the observation which is consistent with my understanding of the evidence of caseworkers, and with my assessment of other evidence. She said: "One of the protective parental deficits emphasised by Community Services in the documentation was that [SK] gave minimal positive answers to questions asked of her by child protection caseworkers. [Dr Gray is here referring to SK's inhibition from disclosing the extent of domestic violence]. This appears to have been interpreted as an indication that [SK] denied of her victimisation, alongside the traumatic impact of her self-harming in April 2014 behaviour, upon her children. Despite this concern being raised, it is my understanding from the documentation provided that [SK] remained in contact with the Crisis Mental Health Team in Canterbury after June 2014, until she commenced therapy with Jinasa Khatri in August. In addition to this the efficacy of the therapeutic relationship with Jinasa Khatri was an issue affirmed by [SK] during this assessment. These aspects of her engagement with treatment services appeared to support her recognition of the need for assistance and deep exploration of her self-destructive behaviour. The benefits of this therapeutic engagement in counselling may have been accentuated, as [SK] was able to speak to a therapist in Hindi and in addition to this, this counselling constituted first sustained psychological intervention that [SK] had been involved in. It is only possible to emphasise the probably significance of these factors in considering the apparent therapeutic progress of [SK] to date, however they provide some reinforcement of her potential for adaptive change and progress in the management of her mood, her emotional availability as a mother and her willingness to collaborate in future interventions." (Bold added) 1. Dr Gray concluded her first report supporting the real possibility of restoration. She opined at [16.1]: "Based on the issues raised in this assessment, there appears to be a basis upon a restoration plan for [SB] can be considered at this time". 1. It is important to appreciate that Dr Gray expressed that opinion when instructed to assess "The mother and father's capacity to parent [SB]", not SK's capacity alone. 2. On the occasion of Dr Gray's second report, SK was living apart from GB, the physical separation having occurred in about February to August 2015. GB had been imprisoned since October 2015. Dr Gray recounted the history of physical violence inflicted by GB upon SK in the period after their ceasing to live together in February 2015. At [9.7], Dr Gray observed the dominance of GB over SK in the following terms: "In discussing the history of their relationship conflict, [SK] stated that there were incidents when [GB] had been violent to her in India and that these had happened after they had married and that she had attended the non-resident Indian police to report these. She stated, that after his arrival in Australia she had tried to make her husband happy and that she had complied with his requests that she not discuss their arrangements and the violence she experienced with the counsellors at Jannawi Family Centre." (bold added) 1. At [9.8] of her second report, Dr Gray recorded that SK had said that GB had: "..repeatedly told her that even though there were lots of beatings between couples in India, spouses did not leave each other". 1. Dr Gray observed that [SK] had recently come to understand that [GB] had married SK primarily so that he could live in Australia rather than to be her husband and to be a member of her family. Specifically in regard to the history of a great number of phone contacts during 2015 (referred to above) in these reasons, she stated GB had ignored her and spoiled her life whereas she had held feelings for him. 2. At [11.1] of her second report, Dr Gray again observed SK to be doting on SB during contact, playing with him, attending to his practical needs, checking his nappy, feeding him snacks, playing him soft Punjabi music. She observed SB to be content albeit reticent in tolerating physical closeness to SK's gaze: ".. and in reciprocating the intense affectionate behaviour of his mother. He became more excited upon the arrival of the carer at the end of the observation and emotional responses with the foster carer appeared more animated than he had been with his mother." (Note: this is a reference to the first temporary foster carer, not the long-term placement carers) 1. During oral examination, Dr Gray considered that it was age-appropriate for SB to discriminate in favour of his primary carer, particularly in response to intensity of affection from [SK] which in that context could be sensed by SB as intrusive. In other words, his reaction was to do with his discriminating selection of primary carer over SK as the other adult. 2. At [13] of her second report, Dr Gray recorded the report of the counsellor from Jannawi that after Jannawi confronted SK with her continued engagement with GB, despite SK having stated that she appreciated the prioritising of her own safety in the goal of enhancing her separation from GB, SK had disconnected with Jannawi. Dr Gray recorded the counsellor's report that these: ".. incidents were considered by the counsellor to reflect a lack of [SK] being able to sustain and implement changes pivotal to her own personal safety and her capacity to make a connection between this and the importance of this safety in preparing for a residential parental role". 1. Dr Gray concluded her second report at [14.1] stating that unlike in her first report, she: "... would not support restoration of [SB] to either parent at this time. There is a need for [SK] to consolidate her stability and strategies for emotional regulation so that she is able to improve her recovery from the multiple traumatic losses, dislocations and distress experienced in the past five years, in the context of caring for her sons". 1. At [13.2], Dr Gray's reasons expand on this point, by stating that the combined impact of cultural beliefs involving a toleration of victimisation and the stigma attached to SK's divorce by her family in India, the significance of her marriage to a spouse from a higher caste, all acted to reinforce SK's "paralysis in being able to acknowledge her victimisation", necessarily undermining her diminished sense of autonomy and self-efficacy and in addition to have displaced her capacity to focus upon SB's needs for ongoing safety: "Her capacity to be sufficiently attuned and responsive to the prospect of [SB's] developmental needs, and the prospect of his restoration to her care appear to have been a priority displaced by her pre-occupation with remaining connected to a dysfunctional relationship with [SB's] father". 1. At [13.3], Dr Gray observed that SB was forming a primary attachment to his foster carers, and that that was a significant obstacle to benefits of restoration of SB to SK "at this time". She considered that SB had optimal conditions for development of an attachment relationship with his first temporary foster carer, and that a disruption of that was unlikely to be beneficial. [It is important to note that placement with long-term placement carers on 13 May 2016 must have caused exactly that disruption, and yet SB is reported to have adjusted to develop a new attachment relationship]. 2. Prior to giving oral evidence, Dr Gray was provided with documentation updating her from the date of her report 8 December 2015. She said that the updated material did not cause her to change her view expressed in her second report. She identified as "critical" in her opinion that the documentation showed SK's continued connection with GB into 2016, which she opined indicated "some ambiguity" on SK's adjustment to the interpersonal reactivity of GB's previous violence and conflict, such that SK's required "mother's perception of the meaning of separation", and the "implications that had for her safety and/or capacity to" attune to [SB's] developmental needs had not been achieved. Her opinion was that the additional material briefed to her did not indicate that SK had made a "substantial shift in her psychological position" since her report of 8 December 2015: ".. and as a result of that, there didn't appear to have been any acknowledgement of the conditions of her vulnerability and/or the impact of that relationship volatility on her individual functioning as a parent. So there hadn't appeared to be a shift in her perception or recognition or any movement in acknowledging that this was a critical variable". 1. Dr Gray identified as "the other main plank" of her view, remaining the same, was that: "There appeared to be some volatility in the mother's presentation around liaison with community caseworkers. Communication around meeting and also her distress tolerance. More notably in her telephone calls and email communication from March, April and May [2016] and her personal distress and the way that she communicated that. So it tended to indicate that she hadn't developed any alternative strategies in managing any intra-psychic stress or dealing more effectively with caseworkers". 1. Endeavouring to understand Dr Gray's opinion, I asked questions of her from which I extract the following on day 4: "Q. What you are saying, is it not, in a lay person's conclusive statement, is that having a lot of literature to read providing you with an observation of the plaintiff over a substantial period, she has a repetition of display in the ways you've identified of inability to prioritise focus on the welfare of SB because she becomes distracted and negligent of that by her focus on her immediate own environment. That's how I read your report, am I wrong in that? A. No, that's right. I think that priority and perspective taking around priority is something that has consistently not been adjusted since my first report. So for approximately 18 months there hasn't been a shift in that perspective and that has been subsequent to there being clear safety concerns and clear distress subjectively experienced by herself within the spousal relationship. So there hasn't been a shift. In addition to that, there has been therapeutic intervention offered but that hasn't substantively changed one, the degree of disclosure that he's been able to make regarding her own functioning, decision making and relevant, she hasn't been able to take advantage of that. Two, when I interviewed [SB's] mother in - for the second report the veracity of the apparent attempted communication via text messaging and telephone calls that occurred between, I think, August - earlier than August. There was— Q. I think you're looking at January to May, aren't you? A. January to May of last, of last year. It wasn't acknowledged as something which had occurred in the basis of documentary evidence indicating that contact had been attempted. So in the face of clear evidence of - contrary to what she was stating, there wasn't an acknowledgement of the reality of that. So that was concerning because it tended to indicate that she didn't have a capacity to acknowledge the reality of what had most recently occurred and therefore, that acknowledgement of that reality is a precondition for an acknowledgement of an authentic set of goals on which to work for therapeutically." 1. As I understand it, this evidence was an expansion of her first "main plank". 2. Dr Gray expanded on her second "main plank" by describing SK's distress associated with contact visits with SB during the long-term placement period. At the same time, and in my view this is significant, she observed: "Certainly there seems to be from the contact records some alleviation of her distress just preceding the placement change, I think". 1. In my view, Dr Gray's observation, which may I respectfully say, matches with my own observation from the evidence, is that SK became particularly distressed from the time of the placement change from first temporary foster carer to long-term placement carer with view for adoption. The facts which would cause normal tension for a mother in that change, in my opinion would be and in this case were: 1. (1) the reduction in contact from weekly progressively to six visits per annum; 2. (2) the relationship between mother and foster carer established with the first temporary foster carer (SK acknowledged the nurturing and excellent care provided by the first temporary foster carer) was not achieved with the second foster carers, including instances of SB having to SK's observation a strong cold for which he was receiving no medication, being videoed playing in the rain, which is something SK considered in her culture to be unhealthy, and the door-jam finger injury suffered by SB, in relation to which caseworkers provided SK with somewhat of an awkward explanation; 3. (3) SK understood that the second long-term placement which was with a view to adoption, resulted from Final Orders being made when the Children's Court was not provided with the benefit of advocacy presenting SK's views and advocating SK's contest of the proposition of no real possibility of restoration of parental care of SB to her. 1. In response to my further inquiries, Dr Gray stated what I understood to be at the core of her first plank and second plank when she answered: "It's that capacity to adjust a perspective and her panic and anxiety which appears to be an over-riding consideration that she's unable to contain." and, in describing the importance of SK recognising that to achieve the outcome of change, she has to give up: "a highly defended state and two, they don't understand the reason for the necessity of considering something from an alternative perspective …" 1. Further: "If they don't have the motivation or the recognition of why it might be helpful, you're not likely to achieve any behavioural change or adaption, adjustment. If there's a rigidity or a highly defensive denial of the need to recognise or even discuss these issues, the plausibility of behavioural change is very limited. I think what appears, is that there hasn't been a shift in what is, from my reading of the material that I've had, an acknowledgement of the need for the basis of there being a change in view or focus on goals that are directly related to assuming a parental role in the future". 1. Dr Gray properly conceded that her opportunity to assess SK might be disadvantaged by the "sense of shame suffered by SK according to the normative beliefs in a Sikh culture". Dr Gray said: "I was also aware of the fact that because of her cultural identity, she may well have been inhibited in being able to engage with me as an assessor for the Court report and also it may have been a relevant factor in how she engaged with the counsellors at Jannawi." 1. As I have observed, the treating clinical psychologist, Ms Khatri, being of the Punjabi culture, and clinical social worker, Mr Rajan, were able to obtain openness with SK; and, in my view, their opinions and assessments of her, particularly with the assistance of their specialities being psychology and social work respectively, are of utility in determining the issues in this matter. In addition to cultural sensitivities when dealing with caseworkers, the natural tension between SK as a mother of a child removed from her care immediately following birth, and caseworkers, deserves some consideration. 2. Dr Gray explained that after six months of age a child develops an ability for selective attachments observable from interactional behaviour, proximity to primary carer and preference for primary carer. Dr Gray explained that SK's reticence in accepting "the practical implications of the current arrangements", meaning that long-term parental care would remain with the current long-term placement foster carers, brought to her contact with SB an intrusive energy to which "he may well be responding to intrinsic qualities which is he is perceiving responding to with the presence of his mother" causing him to be more hyper-vigilant and to turn to the security of his presently attached primary carer. In other words, the intensity of SK's want for the return of her child SB, when perceived by him during contact, has on occasion not encouraged his display of attachment to SK but rather had the opposite effect. 3. When specifically asked of the potential for long-term harm, particularly in regard to developmental delay if SB were at this stage to be removed from his long-term placement foster carers with whom he has been since 13 May 2016 and restored to SK, with whom he has never had the opportunity of attachment; Dr Gray identified that: 1. 55% of adults are considered to have a secure attachment model in terms of how they operate interpersonally, and 45% of adults are considered to have insecure attachment patterns; 2. SB is at an age when he is becoming more discriminating in choice of with whom he attaches and more self-regulating developmentally, albeit there is "some tangible evidence that he has already developed a preferential attachment" with the long-term placement foster carers; and 3. SB not having had a basis upon which to really develop a discrimination in favour of SK, restoration to the care of SK would likely cause some dis-regulation in the acquisition of development goals, like autonomy or mastering of self-regulation. 1. However, Dr Gray clearly expressed the view that an adequately managed transition to restoration over an appropriate time period would not cause significant or long-term harm to SB, particularly in regard to achieving developmental milestones. Dr Gray said: "There is likely to be delay in acquisition of these developmental milestones. However, they will eventually be reached". 1. When it was put to Dr Gray that consideration of SK's risk behaviour in response to extreme stresses should be measured on the history that she had not self-harmed since 2014, despite a subsequent year of abuse, humiliation, violence, rejection and exploitation from GB; Dr Gray acknowledged that SK can develop the adjustment required to satisfy Dr Gray's first "main plank", and that the adjustment could be developed quickly and reliably now that GB is deported and out of the picture. She acknowledged that this is a significant change; specifically that she had observed the adjustment not to be made "when they couldn't be in the last year" because of GB's presence. 2. In considering Dr Gray's opinion evidence in this regard, I am mindful of: 1. SK has controlled herself to the extent that she has refrained from self-harm since 2014 despite continuation of the same stressors which caused her to self-harm before then; 2. SK's self-harming occurred when she ceased taking medication during pregnancy in order to protect the health of her foetus SB; 3. SK has the benefit of a mental health care plan monitored by her long-term treating GP, Dr Smythe; and 4. that all of SK's treating practitioners of the past two years, clinical psychologist Khatri, clinical social worker Rajan, treating GP, Dr Smythe, and psychiatrist, Dr Ali, have provided opinion evidence supporting SK's capacity for motherhood of SB. 1. Dr Gray gave the following evidence, which is most pertinent to the present and future assessment of the capacity of SK for parental care of SB: "Q. It appears that the issue as you're identifying is in relation to intimate relationships that the mother has had. So not relationships in general. If we assume that the mother has been able to hold down a fulltime job since October last year and continues to do so, if we assume a good continued parenting capacity of the two older boys, and the mother's evidence was also she attends the temple every second weekend, I think the evidence was, and she does some volunteer work there and has some supports there, then certainly back to I think three questions ago, they would be certainly stabilising and positive factors in the mother's life, wouldn't they? A. They could be, yes." 1. Dr Gray conceded in her evidence that she was not aware of SK's social contacts and function, or SK's function in SK's professional occupational sphere, with BK's and RK's school staff, and interpersonally with BK and RK. She acknowledged that her brief contained a narrower focus. Each of these important elements of the environment of SK's household falls to favour SK's parenting capacity. 2. Dr Gray's valuable opinion in the area of parenting assessment, when considered on balance with the other expert opinions, does not compel a denial of the realistic possibility of restoration. SELF-HARM/THE MENTAL HEALTH RISK 1. In response to my direction that it do so, the Secretary/first defendant filed supplementary written submissions identifying the evidence said to support its primary submission at [10(1)] that SK's self-harm was a threat to the life of SB in utero. 2. The Secretary/first defendant's additional written submissions identified the Concord Hospital discharge summary concerning the admission on 4 April 2014 (overdose) and the punching of abdomen on 17 June 2014. 3. In the reasons above I have identified that, as contained in a discharge summary, the entry was not contemporaneously recorded. Indeed, page 1 of the discharge summary shows that it was completed on 15 October 2014, which explains how a 17 June 2014 admission was reported on with a 4 April 2014 admission. 4. On its first page the discharge summary acknowledges that a Hindi or Punjabi interpreter was required for comprehensive assessments but not for simple discussions. 5. The most direct recording of intent of SK to kill her baby [SB] is not in the discharge summary, but appears in a weekly case review dated 8 April 2014. It is not a note made at the time of the admission on 4 April 2014. 6. I repeat that during the hearing counsel for the parties confirmed that there was only one incident of SK punching her abdomen and that incident occurred on 13 April 2014. 7. It is confusing then, that the weekly review note on 8 April 2014 records "Admits to also punching her stomach – 'to kill the baby'. Acknowledges this was very bad". Nothing contained in the weekly review note indicates one way or the other whether a Hindi or Punjabi interpreter was present when, according to the author of the weekly review note, words to that effect were understood to have been used by SK. 8. The next page of the weekly review records that SK said that the overdose which she took was not planned. It is described as "impulsive". Thereafter a quote appears in the words "I try to believe him but can't … I keep thinking about what he's doing there" [this refers to GB's infidelity in India whilst SK was in Australia, the immediate stressor being a telephone argument between them]. The next line then reads "Took OD with intent of killing baby and self. Says that when visited husband in India (before pregnant)/he was violent – hit her repeatedly". 9. The creators of these entries did not give evidence Whilst I am of the view that the use of quotations might not as accurately as is required of evidence in a courtroom record what SK said, and mindful that rules of evidence do not apply and that these are not adversarial proceedings, and allowing for uncertainty as to whether the conversations were recorded with the accuracy of that which would be achieved with a Hindi or Punjabi interpreter; in my view that evidence must be accepted as representing a high risk of state of mind at the time of the events of overdose on 4 April 2014 and abdomen punching on 13 April 2014. 10. The significance of those statements of SK's intent in these proceedings is in regard to the assessment of risk of exposure of SB to harm by physical attack or exposure to an environment of argument and violence such as in the presence of a violent domestic relationship between SK and a male partner. I have referred to my concern regarding the accuracy of and the adequacy of evidence of high risk behavioural events in the Application, Summary and affidavit evidence before the Children's Court and this appeal. 11. I accept the evidence of consultant psychiatrist Dr Ali. I had the benefit of his oral evidence including during cross-examination on SK's medical history. Dr Ali is a consultant psychiatrist, a fellow of the Royal Australian New Zealand College of Psychiatrists, and a lecturer in psychiatry at the University of New South Wales. His medico-legal report is dated 24 July 2016, and at the time of giving evidence he had been given by the parties the relevant hospital clinical notes and Police records. He had consulted with SK on 5 January 2010, 16 May 2016, and on one other occasion, the date of which he could not recall. 12. In his report dated 24 July 2016, he stated the following very significant matters: 1. he has reviewed the Community Health Centre file; 2. SK has reasonable insight into her condition; 3. her diagnosis is major depression exhibited in anxiety and depressive symptoms without psychosis; 4. SK has a history of suicidal ideation but not suicidal planning; 5. the prognosis is that as long as SK continues to take medication regularly and see an appropriate medical professional, from time to time, she should be alright; 6. there was a direct relationship between the domestic violence and her mental health; 7. SK is quite stable at the moment and does not have any active symptoms; 8. SK's relapse is always related to her lack of intake of medication or severe stress at times. 1. Dr Ali reported his following opinion in relation to SK's parenting capacity in the future: "With regard to her ability to look after her children I note she has looked after two children who are now 17 and 14 and they have been looked after and they have never been taken away from her so if her mental state remains stable she should be able to look after her child". 1. In oral evidence, Dr Ali described SK's condition as not chronic and her vulnerability as not permanent. He felt that if she has access to treatment assistance, "when the therapy sticks" she would only require a check-up once per six months, such review being satisfactorily undertaken by a counsellor in the first instance depending on diagnosis. 2. When Dr Ali was specifically cross-examined about the overdose and the attack on her abdomen, he gave the opinion: "I think a lot of time people say they will kill themselves, but really they don't, they don't have a definite plan or something". 1. He did not play down the seriousness of the events. However, he was unmoved in his view that SK was not attempting suicide. 2. Dr Ali was cross-examined on the diagnosis of borderline personality disorder which appeared in the clinical notes as the opinion of the peri-natal psychiatrist Dr Woods in April 2014. He was unshaken in his opinion rejecting that diagnosis. He explained that it is a difficult condition to treat, whereas depression is regularly treatable. He said that classically for borderline personality disorder there have to be multiple suicidal attempts, multiple episodes of cutting, and then the patient has to have a certain kind of other behaviour such as dependence on drugs. He opined that there are multiple things that you can describe for borderline personality disorder which are not described in the notes concerning SK. 3. In his opinion, SK's attempts at suicide were due to adjustment disorder and depression. Dr Ali was clear in his opinion that for the diagnosis of borderline personality disorder the instability and intense personal relationships must be characterised by extremes of idealisation and devaluation in regard to all relationships in life, not as in the case of SK, only in regard to her relationship with her husband. 4. This opinion given by Dr Ali is very important in this case because it identifies SK's high risk behaviours consequent of extreme lack of control to the stressors of that relationship with GB. Previously, her extreme behaviour was always instigated by the one relationship of her violent and distressingly oppressive marriage to JK. 5. There is no evidence of SK exhibiting such extreme behaviours otherwise in her engagement in the community. She successfully maintains employment and indeed, once she gained the required Certificate 3, was re-employed by the home care provider with whom she was employed between 2009 and 2013. 6. Dr Ali's opinion is that with the extreme stresses of those abusive marital relationships removed, with counselling support and where necessary medication, SK "would be able to maintain herself". I asked questions challenging Dr Ali on this point in order to satisfy myself of the limits and content of the risk as he assessed it. 7. In response to the hypothetical scenario of some other extreme stressor arriving in her life in the future, his evidence was that SK is better accessed to the assistance of counselling, medication and mental health assistance now than she was previously. He agreed that SK has to be motivated to seek assistance, if and when required, and that motivation would require insight into the seriousness of the behaviour. 8. I repeat that I accept SK's evidence that she has insight into, and is genuinely remorseful for, her past behaviour. It may be that the removal of SB from her care has given her that insight. That was not directly put to her. In my view, it is immaterial. The important thing is that she appreciates the need to seek assistance if extreme stressors revisit her life, so that the extreme behaviour of the past is not repeated. 9. Dr Ali specifically disagreed with the Canterbury Hospital Discharge Summary assessment of feticide. He considered SK to have been hurting herself, including when punching herself in the stomach. He said that his opinion was supported by there being no evidence that she had ever done anything to harm BK and RK. Dr Ali said: "One important thing is I will say is that there were two children in her custody actually living [with] her and I couldn't find any evidence of her doing anything to them". 1. He did not consider the 4 April 2014 incident of SK taking an overdose of medication in the presence of BK and RK as causing them any significant harm. 2. Eventually, during cross-examination from the Independent Legal Representative, Dr Ali gave this concluding evidence: "Q. … Doctor, do I understand your evidence that you've not read anything or seen anything that might suggest to you that [SK] is not able to physically provide the basic needs for a child?" A. Yes, nothing to suggest that, no. 1. I consider that I should be guided by Dr Ali's expert assessment of the risk to SB, including as it does his consideration of the clinical hospital notes referring to a clinician's reference to feticidal contemplation or action by SK. TRANSITION – SB'S DEVELOPMENTAL STAGE 1. Early in the proceedings, counsel for SK submitted proposed minutes of order. These became marked Exhibit A. SK proposes a three month transition of permanent care of SB to SK, and pursuant to s79(b) of the Care Act, sole parental care of SB to remain with the Secretary for one year. The proposal contemplates that during that first year, pursuant to s76, the placement be supervised by the Secretary, and that at one year a report of the outcomes of the supervision by provided. In addition, SK offered undertakings of compliance, and sought an order pursuant to s73 of the Care Act accepting those undertakings, such undertakings to expire in a period of two years. 2. To my understanding, the period of three months approximates with the period of transition employed by Barnardos with the approval of the Secretary for the transition from first temporary foster carer to long-term foster care. That transition having occurred recently and SB being of the approximately same developmental age, it does not seem an unreasonable period to suggest. SUMMARY OF CONCLUSIONS 1. In determination of this new hearing with fresh and additional evidence in addition to that which was before the Children's Court, the Final Orders made in that Court on 8 March 2016 for permanent placement denying SK restoration to parental care of SB, do not weigh heavily, in my opinion, because: 1. the Children's Court did not have the benefit of forensic dealing with the evidence over the several days of hearing as occurred in this appeal; 2. the Children's Court did not have the benefit of the oral evidence of SK; 3. the Children's Court did not have the benefit of the oral evidence of a consultant psychiatrist on the central issues of SK's mental health, as was the evidence of Dr Ali in this appeal; 4. the Children's Court did not have the benefit of the oral evidence of the Court-appointed clinician, Dr Gray, as occurred in this appeal; and 5. there is at least a strong chance that the Children's Court was permitted to take into consideration inaccurate evidence which, in my opinion, highly exaggerated the risk of SK's self-harm, and of her lack of insight to risk of harm to SB. 1. I have concluded that: 1. The stressor which triggered SK's high risk behaviour of self-harm and lack of self-control was her relationship with GB, which stressor was removed on his deportation from Australia. 2. The substantial financial stressors which highlighted the environment exposing SK to the trigger for her high risk behaviour consequent of the extreme stressor of her relationship with SB, have been removed or are ameliorated by her maintaining regular employment as a qualified home care worker. 3. The evidence does not support a finding that SK's behaviour otherwise represents a significant risk of harm to SB. There is no evidence of incidents of actual harm to SB inflicted by SK. 4. The maturity, composure, courtesy and independence of SK's adolescent sons, BK and RK, are real evidence exemplifying SK's parental capacity without causing harm to children in her care. 5. SK's maintenance of regular employment of a responsible character over a long-term with a provider in the home care industry, in her engagement with the community associated with her local Sikh Temple exhibit her development of community and culturally-based support. 6. I accept Dr Ali's opinion identifying SK's incidents of self-harm, being relevantly high risk behaviours, with periods in which the extreme stressors of her relationship with GB were combined with absence of medication due to her pregnancy. 7. I accept Dr Ali's opinion that with counselling and medication under GP supervision as is presently available and practised by SK, it is unlikely that SK will cause harm to SB should extreme stressors re-enter her life in the future. 8. It is significant that The Canterbury Mental Health Service has discharged SK, and that at the date of hearing, she had lived two years including during the continuing trigger of GB's domestic abuse, violence and humiliation of her prior to his deportation, without exhibiting the high risk behaviour including self-harm. 9. I accept Dr Ali's identification of SK's self-harm behaviour as directed to herself, and his rejection of the view that it was feticide. 10. I accept Dr Ali's opinion, which is consistent with the opinions of SK's treating GP, Dr Smythe, treating clinical psychologist, Ms Khatri, and treating clinical social worker, Mr Rajan, that SK suffers a treatable, episodic, depression; the appropriate management for which is available to her. 11. SK impressed as having remorse for her activity in the past, and as possessing appropriate insight that those behaviours cannot be repeated if SB is to be restored to her and to remain in her parental care. 12. The Court-appointed clinician's (Dr Gray's) recommendation that parental care of SB not be restored to SK "at this time" is expressly contingent upon observation of SK's readiness to accept the risk to SB of an environment of violence, and to prioritise the safety, welfare and nurturing of SB in the parenting environment controlled by SK. In regard to that condition, I am satisfied from my observation of SK's expression of remorse and of the required insight, during her oral evidence. 13. I am influenced against preference for Dr Gray's opinion by my acceptance of the expert opinions of treating clinical psychologist, Ms Khatri, treating GP, Dr Smythe, treating clinical social worker, Mr Rajan, and treating and medico-legal consultant psychiatrist, Dr Ali; each of whom, having had the benefit of more access to and experience of SK than did the Court-appointed clinician (Dr Gray), supports restoration of SB to SK's parental care. 14. Having reviewed the hospital clinical notes and visitation chart for the birth of SB, the case work records concerning SK's preparation for the birth of SB during a period of relative poverty, and having reviewed the case work notes and the Court-appointed clinician's (Dr Gray's) observations concerning the events of SK's contact with SB during his placement with foster carers; I am not satisfied as to the Secretary/first defendant's submission of a lack of SK's mother attachment relationship with SB, and find that SK has, from the time of his birth, displayed affection, attentiveness, doting, and appropriate interest in health, welfare and development of SB. 1. Applying the objects of the Care Act, including recognition of the primary concern for safety, welfare and well-being of SB in a long-term, safe, nurturing, stable and secure environment (s8 of the Care Act); and the paramountcy principles; in my opinion, restoration of SB to the household environment provided by SK with his brothers, BK and RK, will be the least intrusive intervention in SB's life, promoting his opportunity for development, including of his Punjabi cultural associated self-identity whilst satisfying the paramount concern of his protection from harm (s9 of the Care Act). 2. In my opinion, it is in the best interests of SB that the first listed preference for his permanent placement pursuant to s10A(3) of the Care Act be satisfied by his being restored to the care of SK, preserving his family relationship with her, being his birth mother, and with his brothers, BK and RK. 3. I am satisfied on the evidence, according to the burden of proof described in Campbell's case discussed in paragraphs [36] to [40] above, that there is a realistic possibility of restoration of parental care of SB to his mother SK in satisfaction of the objects, paramountcy principle, and permanent placement principles of the Act pursuant to s83(5A) and (7). Specifically, I am satisfied that on the evidence permanency planning has been appropriately and adequately addressed, that the realistic possibility of restoration is consistent with the whole of the circumstances of SB, considered both in his present long-term foster placement and in the future household of SK, on the basis of my above-stated conclusions particularly concerning the change of circumstances consequent of the deportation of GB, SK's separation from and removal of sponsorship for GB, and SK's apparently successful mental health management over the past period of approximately two years. 4. Ultimately, the Court has to assess the risk of harm to SB and balance that risk with SB's cultural and familial needs and rights subject to the paramount concern for his safety, welfare and well-being. There are no perfect crystal balls. There are no family placements either with birth parents or with foster parents which are devoid of risk. On the whole of the evidence, particularly accepting the support for restoration given by SK's treating medical mental health professionals, and by the community of her local Sikh Temple, as well as being influenced by the apparent excellent qualities of sons, BK and RK, who have been raised virtually single-handedly by SK; I assess the risk of harm to SB as very low. ORDERS 1. The appeal is allowed. 2. Final Orders of the Children's Court made 8 March 2016 be set aside. 3. Parental Responsibility for SB is to remain with the Minister for 12 months from the date of these Orders pursuant to s 79(1)(b) of the Care Act, save as follows. 4. All aspects of parental responsibility of SB are after 12 months from the date of these Orders to be restored to SK pursuant to s 79(1)(a) of the Care Act. 5. The Secretary is to prepare a permanency plan for restoration of SB with SK, in accordance with Orders 3 and 4 above, pursuant to the provisions of ss 84 and 85 of the Care Act. 6. The Secretary is to provide a plan for transition of SB into the care of SK over the period of three months commencing the date of these Orders. 7. I direct the parties to attempt to agree orders providing for the requirements of the permanency plan involving restoration to SK, provision of services facilitating that restoration. 8. I direct the parties to attempt to agree undertakings to be given by SK, following as closely as can be agreed, the undertakings offered by SK in Exhibit A, such undertakings to be for the period of 12 months from the date of these orders. 9. The matter to be returned before me for the making of further final orders on 21 November 2016. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2016